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The  Continental  Legal  History  Series 

Published  under  the  auspices  of  the 

Association  of  American  Law  Schools 


I.  A  GENERAL  SURVEY  OF  EVENTS,  SOURCES,  PERSONS, 
AND  MOVEMENTS  IN  CONTINENTAL  LEGAL  HISTORY. 
By  Various  Authors.  Translated  by  Rapelje  Howell,  F.  S. 
Philbrick,  John  Walgren,  and  John  H.  Wigmore.    S6.00  net. 

II.  GREAT  JURISTS  OF  THE  WORLD,  FROM  PAPINIAN  TO 
VONIHERING.  By  Various  Authors.  Illustrated.  (Extra  vol- 
ume.   By  arrangement  with  John  Murray,  London.)     S5.00  net. 

III.  HISTORY  OF  FRENCH  PRIVATE  LAW.  By  J.  Brissaud,  late 
of  the  University  of  Toulouse.  Translated  by  Rapelje  Howell,  of 
the  New  York  Bar.    $5.00  net. 

IV.  HISTORY  OF  GERMANIC  PRIVATE   LAW.      By  Rudolph 
Huebner,  of  the  University  of  Giessen.     Translated  by  Francis    \/ 
S.  Philbrick,  of  the  University  of  Cahfornia.    S4.50  net. 

V.  HISTORY  OF  CONTINENTAL  CRIMINAL  PROCEDURE. 
By  A.  Esmein,  late  of  the  University  of  Paris,  with  chapters  by 
Francois  Garraud,  of  the  University  of  Lyon,  and  C.  J.  A.  Mitter- 
maier,  late  of  the  University  of  Heidelberg.  Translated  by  John 
Simpson,  of  the  New  York  Bar.    $4.50  net. 

VL  HISTORY  OF  CONTINENTAL  CRIMINAL  LAW.  By  Ludwig 
VON  Bar,  late  of  the  University  of  Gottingesn.  Translated  by 
Thomas  S.  Bell,  of  the  Los  Angeles  Bar.    $4.00  net. 

VIL     HISTORY    OF    CONTINENTAL   CIVIL   PROCEDURE.    By 

Arthur  Engelmann,  Chief  Justice  of  the  Court  of  Appeals  at  Bres- 
lau,  with  a  chapter  by  E.  Glasson,  late  of  the  University  of  Paris. 
Translated  by  Robert  W.  Millar,  of  Northwestern  University. 
$4.00  net. 

VIII.  HISTORY  OF  ITALIAN  LAW.  By  Carlo  Calisse,  of  the  Italian 
Council  of  State.  Translated  by  John  Lisle,  late  of  the  Philadel- 
phia Bar.    $5.00  net. 

IX.  HISTORY  OF  FRENCH  PUBLIC  LxVW.  By  J.  Brissaud,  late  of 
the  University  of  Toulouse.  Translated  by  James  W.  Garner,  of 
the  University  of  Illinois.     $4.50  net. 

X.  HISTORY  OF  CONTINENTAL  COMMERCIAL  LAW.  By  Paul 
HuvELiN,  of  the  University  of  Lyon.  Translated  by  Ernest  G. 
Lorenzen,  of  Yale  University.    $5.50  net. 

XI.  THE  PROGRESS  OF  CONTINENTAL  LAW  IN  THE  19TH 
CENTURY.  By  A.  Alvarez.  L.  Duguit,  J.  Charmont,  E.  Ripert, 
and  others.  Translated  by  L.  B.  Register,  of  the  University  of 
Pennsylvania.    $5.00  net. 


THE    CONTINENTAL 
LEGAL    HISTORY    SERIES 

Volume  Four 


A  HISTORY  OF  GERMANIC 
PRIVATE   LAW 


THE   CONTINENTAL  LEGAL  HISTORY  SERIES 

Published  under  the  auspices  of  the 
ASSOCIATION   OF  AMERICAN  LAW   SCHOOLS 


A  HISTORY 


OF 

GERMANIC  PRIVATE  LAW 

BY 

RUDOLF   HUEBNER 

PROFESSOR    OF    LEGAL    HISTORY   IX    THE    UNIVERSITY   OF    GIESSEN 
TRANSLATED  BY 

FRANCIS   S.  PHILBRICK 

PROFESSOR    OF    LAW    IN    THE   UNIVERSITY    OF    CALIFORNIA 
WITH    AN   EDITORIAL    PREFACE   BY 

ERNEST   G.    LORENZEN 

PROFESSOR    OF    LAW    IN    TALE    UNIVERSITY 
AND     INTRODUCTIONS    BY 

PAUL   VINOGRADOFF 

CORPUS    PROFESSOR   OF   JURISPRUDENCE    IN    OXFORD   UNIVERSITY 
AND    BY 

WILLIAM   E.    WALZ 

DEAN    OF    THE    FACULTY    OF    LAW    IN    THE    UNIVERSITY    OF    MAINE 


BOSTON 
LITTLE,  BROWN,  AND  COMPANY 

1918 


Copyright,  WIS, 
By  Little,  Brown,  and  Company. 

All  rights  reserved 


NortDooli  Iprras 

Set  up  and  clectrotypcd  by  J.  S.  Gushing  Co.,  Norwood,  Mass.,  U.S.A. 

Presswork  by  S.  J.  Parkhill  &  Co.,  Boston,  Mass.,  U.S.A. 


o 

u 


o 


EDITORIAL  COMMITTEE 

OF   THE 

ASSOCIATION  OF  AMERICAN  LAW  SCHOOLS 

Joseph  H.  Drake,  Professor  of  Law  in  the  University  of 
Michigan. 

Ernst  Freund,  Professor  of  Law  in  the  University  of  Chicago. 

Ernest  G.  Lorenzen,  Professor  of  Law  in  Yale  University. 

WxM.  E.  Mikell,  Professor  of  Law  in  the  University  of  Penn- 
sylvania. 

John  H.  Wigmore,  Chairman,  Professor  of  Law  in  Northwestern 
University. 


LIST  OF  TRANSLATORS 

Thomas  S.  Bell,  of  the  Los  Angeles  Bar. 

James  W.  Garner,  Professor  of  Political  Science  in  the  Univer- 
sity of  Illinois. 

Rapelje  Howell,  of  the  New  York  Bar, 

John  Lisle,  late  of  the  Philadelphia  Bar. 

Ernest  G.  Lorenzen,  of  the  Editorial  Committee. 

Robert  W.  Millar,  Professor  of  Law  in  Northwestern  Uni- 
versity. 

Francis  S.  Philbrick,  Professor  of  Law  in  the  University  of 
California. 

Layton  B.  Register,  Lecturer  on  Law  in  the  University  of 
Pennsylvania. 

John  Simpson,  of  New  York. 

John  Walgren,  of  the  Chicago  Bar. 

John  H.  Wigmore,  of  the  Editorial  Committee. 


366057 


I  might  instance  in  other  professions  the  obligation  men  lie  under  of 
applying  themselves  to  certain  parts  of  History;  and  I  can  hardly  for- 
bear doing  it  in  that  of  the  Law,  —  in  its  nature  the  noblest  and  most 
beneficial  to  mankind,  in  its  abuse  and  debasement  the  most  sordid  and 
the  most  pernicious.  A  lawyer  now  is  nothing  more  (I  speak  of  ninety- 
nine  in  a  hundred  at  least),  to  use  some  of  Tully's  words,  "nisi  leguleius 
quidem  cautus,  et  acutus  praeco  actionum,  cantor  formularum,  auceps 
syllabarum."  But  there  have  been  lawyers  that  were  orators,  philoso- 
phers, liistorians:  there  have  been  Bacons  and  Clarendons.  There  ^\ill 
be  none  such  any  more,  till  in  some  better  age  true  ambition,  or  the  love 
of  fame,  prevails  over  avarice;  and  till  men  find  leisure  and  encourage- 
ment to  prepare  themselves  for  the  exercise  of  this  profession,  by  climb- 
ing up  to  the  vantage  ground  (so  my  Lord  Bacon  calls  it)  of  Science, 
instead  of  grovelling  all  their  lives  below,  in  a  mean  but  gainful  applica- 
tion of  all  the  httle  arts  of  cliicane.  Till  this  happen,  the  profession  of  the 
law  win  scarce  deserve  to  be  ranked  among  the  learned  professions.  And 
whenever  it  happens,  one  of  the  vantage  grounds  to  which  men  must 
climb,  is  Metaphysical,  and  the  other,  Historical  Knowledge.  Hexry 
St.  John,  Viscount  Bolingbroke,  Letters  07i  the  Study  of  History  (1739). 

Whoever  brings  a  fruitful  idea  to  any  branch  of  knowledge,  or  rends 
the  veil  that  seems  to  sever  one  portion  from  another,  his  name  is  WTitten 
in  the  Book  among  the  builders  of  the  Temple.  For  an  English  lawj^er 
it  is  hardly  too  much  to  say  that  the  methods  which  Oxford  invited  Sir 
Henry  Maine  to  demonstrate,  in  this  chair  of  Historical  and  Comparative 
Jurisprudence,  have  revolutionised  our  legal  history  and  largely  tran_s- 
formed  our  current  tex-t-books. — Sir  Frederick  Pollock,  Bart.,  The 
History  of  Comparative  Jurisprudence  (Farewell  Lecture  at  the  Univer- 
sity of  Oxford,  1903). 

No  piece  of  History  is  true  when  set  apart  to  itself,  divorced  and  iso- 
lated. It  is  part  of  an  intricately  pieced  whole,  and  must  needs  be  put 
in  its  place  in  the  netted  scheme  of  events,  to  receive  its  true  color  and 
estimation.  We  are  all  partners  in  a  common  undertaking,  —  the  illumi- 
nation of  the  thoughts  and  actions  of  men  as  associated  in  society,  the 
life  of  the  human  spirit  in  this  familiar  theatre  of  cooperative  effort  in 
which  we  play,  so  changed  from  age  to  age,  and  yet  so  much  the  same 
throughout  the  hurrying  centuries.  The  day  for  synthesis  has  come.  No 
one  of  us  can  safely  go  forward  without  it.  —  Woodrow  Wilson,  The 
Variety  and  Unity  of  History  (Address  at  the  World's  Congress  of  Arts 
and  Science,  St.  Louis,  1904). 

A  lawyer  without  history  or  literature  is  a  mechanic,  a  mere  working 
mason ;  if  he  possesses  some  knowledge  of  these,  ho  may  A-enture  to  call  him- 
self an  architect. — Sir  Walter  Scott,  "Guy  Mannering,"  c.  XXXVII. 


CONTINENTAL  LEGAL  HISTORY  SERIES 

GENERAL    INTRODUCTION   TO   THE    SERIES 

"All  history,"  said  the  lamented  master  Maitland,  in  a  memo- 
rable epigram,  "is  but  a  seamless  web;  and  he  who  endeavors  to 
tell  but  a  piece  of  it  must  feel  that  his  first  sentence  tears  the 
fabric." 

This  seamless  web  of  our  own  legal  history  unites  us  inseparably 
to  the  history  of  Western  and  Southern  Europe.  Our  main  interest 
must  naturally  center  on  deciphering  the  pattern  which  lies 
directly  before  us,  —  that  of  the  Anglo-American  law.  But  in 
tracing  the  warp  and  woof  of  its  structure  we  are  brought  inevi- 
tably into  a  larger  field  of  vision.  The  story  of  Western  Continental 
Law  is  made  up,  in  the  last  analysis,  of  two  great  movements, 
racial  and  intellectual.  One  is  the  Germanic  migrations,  planting 
a  solid  growth  of  Germanic  custom  everywhere,  from  Danzig 
to  Sicily,  from  London  to  Vienna.  The  other  is  the  posthumous 
power  of  Roman  law,  forever  resisting,  struggling,  and  coalescing 
with  the  other.  A  thousand  detailed  combinations,  of  varied 
types,  are  developed,  and  a  dozen  distinct  systems  now  survive 
in  independence.  But  the  result  is  that  no  one  of  them  can  be 
fully  understood  without  surveying  and  tracing  the  whole. 

Even  insular  England  cannot  escape  from  the  web.  For,  in 
the  first  place,  all  its  racial  threads  —  Saxons,  Danes,  Normans  — 
were  but  extensions  of  the  same  Germanic  warp  and  woof  that 
was  making  the  law  in  France,  Germany,  Scandinavia,  Nether- 
lands, Austria,  Switzerland,  Northern  Italy,  and  Spain.  And, 
in  the  next  place,  its  legal  culture  was  never  without  some  of  the 
same  intellectual  influence  of  Roman  law  which  was  so  thoroughly 
overspreading  the  Continental  peoples.  There  is  thus,  on  the 
one  hand,  scarcely  a  doctrine  or  rule  in  our  own  system  which  can- 
not be  definitely  and  profitably  traced  back,  in  comparison,  till 
we  come  to  the  point  of  divergence,  where  we  once  shared  it  in 
common  with  them.  And,  on  the  other  hand,  there  is,  during  all 
the  intervening  centuries,  a  more  or  less  constant  juristic  socia- 
bility (if  it  may  be  so  called)  between  Anglo-American  and  Con- 

ix 


CONTINENTAL   LEGAL   HISTORY   SERIES 

tinental  Law;  and  its  reciprocal  influences  make  the  story  one 
and  inseparable.  In  short,  there  is  a  tangled  common  ancestry, 
racial  or  intellectual,  for  the  law  of  all  Western  Europe  and  ourselves. 

For  the  sake  of  legal  science,  this  story  should  now  become  a 
familiar  one  to  all  who  are  studious  to  know  the  history  of  our 
own  law.  The  time  is  ripe.  During  the  last  thirty  years  Euro- 
pean scholars  have  placed  the  history  of  their  law  on  the  footing 
of  modern  critical  and  pliilosophical  research.  And  to-day,  among 
ourselves,  we  find  a  marked  widening  of  view  and  a  vigorous 
interest  in  the  comparison  of  other  peoples'  legal  institutions. 
To  the  satisfying  of  that  interest  in  the  present  field,  the  only 
obstacle  is  the  lack  of  adequate  materials  in  the  English  language. 

That  the  spirit  of  the  times  encourages  and  demands  the  study 
of  Continental  Legal  History  and  all  useful  aids  to  it  was  pointed 
out  in  a  memorial  presented  at  the  annual  meeting  of  the  Asso- 
ciation of  American  Law  Schools  in  August,  1909: 

"The  recent  spread  of  interest  in  Comparative  Law  in  general  is 
notable.  The  Comparative  Law  Bureau  of  the  American  Bar  Associa- 
tion; the  Pan-American  Scientific  Congress;  the  American  Institute 
of  Criminal  Law  and  Criminology;  the  Civic  Federation  Conference 
on  Uniform  Legislation;  the  International  Congress  of  History;  the 
lib.raries'  accessions  in  foreign  law,  —  the  work  of  these  and  other 
movements  touches  at  various  points  the  bodies  of  Continental  law. 
Such  activities  serve  to  remind  us  constantly  that  we  have  in  English 
no  histories  of  Continental  law.  To  pay  any  attention  at  all  to  Con- 
tinental law  means  that  its  history  must  be  more  or  less  considered. 
Each  of  these  countries  has  its  own  legal  system  and  its  ovm  legal 
history.  Yet  the  law  of  the  Continent  was  never  so  foreign  to  Eng- 
lish as  the  English  law  was  foreign  to  Continental  jurisprudence. 
It  is  merely  maintaining  the  l)est  traditions  of  our  own  legal  litera- 
ture if  we  plead  for  a  continued  study  of  Continental  legal  history. 

"  We  believe  that  a  better  acquaintance  witli  the  results  of  modern 
scholarship  in  that  field  will  bring  out  new  points  of  contact  and 
throw  new  liglit  upon  the  de\elopment  of  our  own  law.  IVIorcover, 
the  present-day  movements  for  codification,  and  for  the  reconstruc- 
tion of  many  departments  of  the  law,  make  it  highly  desirable  that 
our  profession  should  be  well  informed  as  to  the  history  of  the  nine- 
teenth century  on  the  Continent  in  its  great  measures  of  law  reform 
and  codification. 

"  For  tliese  reasons  we  believe  that  the  thoughtful  American  lawyers 
and  students  should  have  nt  their  disposal  translations  of  some  of 
the  best  works  in  Continental  legal  history." 

And  the  following  resolution  was  then  adopted  unanimously  by 
the  Association: 


CONTESTENTAL   LEGAL   HLSTORY    SERIES 

"  That  a  committee  of  five  be  appointed,  on  Translations  of  Conti- 
nental Legal  History,  with  authority  to  arrange  for  the  translation 
and  pubUcation  of  suitable  works." 

The  Editorial  Committee,  then  appointed,  spent  two  years  in 
studying  the  field,  making  selections,  and  arranging  for  trans- 
lations. It  resolved  to  treat  the  undertaking  as  a  whole;  and  to 
co-ordinate  the  series  as  to  (1)  periods,  (2)  countries,  and  (3) 
topics,  so  as  to  give  the  most  adequate  survey  within  the  space- 
limits  available. 

(1)  As  to  -periods,  the  Committee  resolved  to  include  modern 
times,  as  well  as  early  and  mediaeval  periods;  for  in  usefulness 
and  importance  they  were  not  less  imperative  in  their  claim  upon 
our  attention.  Each  volume,  then,  was  not  to  be  merely  a  valu- 
able torso,  lacking  important  epochs  of  development;  but  was 
to  exhibit  the  history  from  early  to  modern  times. 

(2)  As  to  countries,  the  Committee  fixed  upon  France,  Ger- 
many, and  Italy  as  the  central  fields,  leaving  the  history  in  other 
countries  to  be  touched  so  far  as  might  be  incidentally  possible. 
Spain  would  have  been  included  as  a  fourth;  but  no  suitable  book 
was  in  existence;  the  unanimous  opinion  of  competent  scholars 
is  that  a  suitable  history  of  Spanish  law  has  not  yet  been  \vTitten. 

(3)  As  to  topics,  the  Committee  accepted  the  usual  Continental 
divisions  of  Civil  (or  Private),  Commercial,  Criminal,  Procedural, 
and  Public  Law,  and  endeavored  to  include  all  five.  But  to  repre- 
sent these  five  fields  under  each  principal  country  would  not  only 
exceed  the  inevitable  space-limits,  but  would  also  duplicate  much 
common  ground.  Hence,  the  grouping  of  the  individual  volumes 
was  arranged  partly  by  topics  and  partly  by  countries,  as  follows: 

Commercial  Law,  Criminal  Law,  Civil  Procedure,  and  Criminal 
Procedure,  were  allotted  each  a  volume;  in  this  volume  the  basis 
was  to  be  the  general  European  history  of  early  and  mediaeval 
times,  with  special  reference  to  one  chief  country  (France  or 
Germany)  for  the  later  periods,  and  with  an  excursus  on  another 
chief  country.  Then  the  Civil  (or  Private)  Law  of  France  and 
of  Germany  was  given  a  volume  each.  To  Italy  was  then  given 
a  volume  covering  all  five  parts  of  the  field.  For  Public  Law  (the 
subject  least  related  in  history  to  our  own),  a  volume  was  given 
to  France,  where  the  common  starting  point  with  England,  and 
the  later  divergences,  have  unusual  importance  for  the  history 
of  our  courts  and  legal  methods.  Finally,  two  volumes  were 
allotted  to  general  surveys  indispensable  for  viewing  the  connec- 

xi 


CONTINENTAL   LEGAL   HISTORY    SERIES 

tion  of  parts.  Of  these,  an  introductory  volume  deals  vnt\i  Sources, 
Literature,  and  General  Movements,  —  in  short,  the  external 
history  of  the  law,  as  the  Continentals  call  it  (corresponding  to 
the  aspects  covered  by  Book  I  of  Sir  F.  Pollock  and  Professor 
F.  W.  ]\Iaitland's  "  History  of  the  English  Law  before  Edward  I ") ; 
and  a  final  volume  analyzes  the  specific  features,  in  the  evolution 
of  doctrine,  common  to  all  the  modern  systems. 

Needless  to  say,  a  Series  thus  co-ordinated,  and  precisely  suited 
for  our  own  needs,  was  not  easy  to  construct  out  of  materials 
written  by  Continental  scholars  for  Continental  needs.  The 
Committee  hopes  that  due  allowance  will  be  made  for  the  diffi- 
culties here  encountered.  But  it  is  convinced  that  the  ideal  of 
a  co-ordinated  Series,  which  should  collate  and  fairly  cover 
the  various  fields  as  a  connected  whole,  is  a  correct  one;  and  the 
endeavor  to  achieve  it  will  sufficiently  explain  the  choice  of  the 
particular  materials  that  have  been  used. 

It  remains  to  acknowledge  the  Committee's  indebtedness  to 
all  those  who  have  made  this  Series  possible. 

To  numerous  scholarly  advisers  in  many  European!  universities 
the  Committee  is  indebted  for  valuable  suggestions  towards 
choice  of  the  works  to  be  translated.  Fortified  by  this  advice, 
the  Committee  is  confident  that  the  authors  of  these  volumes 
represent  the  highest  scholarship,  the  latest  research,  and  the 
widest  repute,  among  European  legal  historians.  And  here  the 
Committee  desires  also  to  express  its  indebtedness  to  Elbert  H. 
Gary,  Esq.,  of  New  York  City,  for  his  ample  provision  of 
materials  for  legal  science  in  the  Gary  Library  of  Continental 
Law  (in  Northwestern  L^niversity) .  In  the  researches  of  prep- 
aration for  this  Series,  those  materials  were  found  indispensable. 

To  the  authors  the  Committee  is  grateful  for  their  willing 
co-operation  in  allowing  this  use  of  their  works.  Without  ex- 
ception, their  consent  has  been  cheerfully  accorded  in  the 
interest  of  legal  science. 

To  the  publishers  the  Committee  ex-presses  its  appreciation 
for  the  cordial  interest  shown  in  a  class  of  literature  so  impor- 
tant to  the  higher  interests  of  the  profession. 

To  the  translators,  the  Committee  acknowledges  a  particular 
gratitude.  The  accomplishments,  legal  and  linguistic,  needed  for 
a  task  of  this  sort  are  indeed  exacting;  and  suitable  translators 
are  here  no  less  needful  and  no  more  numerous  than  suitable 
authors.    The  Committee,  on  behalf  of  our  profession,  acknowl- 

xii 


CONTINENTAL    LEGAL   HISTORY    SERIES 

edges  to  them  a  special  debt  for  their  cordial  services  on  behalf 
of  legal  science,  and  commends  them  to  the  readers  of  these  vol- 
umes with  the  reminder  that  without  their  labors  this  Series 
would  have  been  a  fruitless  dream. 

So  the  Committee,  satisfied  with  the  privilege  of  having  intro- 
duced these  authors  and  their  translators  to  the  public,  retires 
from  the  scene,  bespeaking  for  the  Series  the  interest  of  lawyers 
and  historians  alike. 

The  Editorial  Coadiittee. 


A  HISTORY  OF 
GERMANIC  PRIVATE  LAW 


CONTENTS 


PAGE 

Editorial  Committee  and  List  of  Translators v 

General   Introduction   to   the    Continental    Legal   History 

Series ix 

Editorial  Preface  by  Ernest  G.  Lorenzen  ........  xxv 

Introduction  by  Paul  Vinogradoff ,     .     .     .  xxvii 

Introduction  by  William  E.  Walz xliii 

Translator's  Note li 

List  of  Important  Works  Cited liii 

Abbreviations  Used  in  the  Footnotes Ivii 

INTRODUCTION 

CHAPTER   I 

GENERAL    TRAITS   OF   GERMANIC   PRIVATE    LAW 


§  1.    German  Private  Law  be- 
fore the  Reception    .     .         1 
§  2.   The  Reception     ....       16 


§  3.    German  Private  Law  after 

the  Reception  ....       22 

§  4.   German    Private  Law   as 

an  Independent  Science       32 


BOOK   I.     THE   LAW    OF   PERSONS 


CHAPTER   II 


§  5.   Man  as  a  Holder  of  Rights 
§  6.    The  Beginning  of  Capacity 

for  Rights 42 

§  7.   Determination  of  Capacity 

for  Rights 46 

§8.   Age 54 


NATURAL   PERSONS 
41 


§  9. 
§10. 
§11- 

§13. 
§14. 


Sex 

Health 

Legal  Status  of  Aliens 

Religion 

Status  


61 

69 
73 

79 

87 


Honor 10: 


XVll 


CONTENTS 


CHAPTER   III 

JURISTIC   PERSONS   AND   GROUPS  INCAPABLE 
OF   HOLDING   RIGHTS 

§  15.    Associational  Organization  in  Germanic  Law,  generally     .     .     . 
Topic  1.   Specific  Types  of  Communities  in  Germanic  Law 


PAGO 

110 


§  16.   The  Sib 114 

§  17.   The  Mark-associations    .  116 
§  18.   Neighborhood     Associa- 
tions of  more  Restricted 

Purposes 12.5 

§  19.   The  Craft  Gilds     ...  128 


§  20.  Other  Associations  with- 
out the  Bond  of  Vici- 
nage   135 

§  21.   The     Communities     of 

"Collective  Hand"      .     139 


Topic  2.   Practical  and  Theoretical  Results  of  German 
Legal  Development 

§  22.  General  Principles  of  the 
German  Law  of  Asso- 
ciations  146 

§  23.   Reception  of   the   Alien 


Law,  and  the  Renas- 
cence of  the  Germanic 
Law  in  Theory  and 
Practice 151 


BOOK   II.     THE   LAW    OF   THINGS 

CHAPTER  IV 

THINGS 


§  24.   The  Concept  of  Things ; 

Rights  in  Things    .     .     160 
§  25.   Immovable  and  Movable 

Things 164 


§  20.   Things  of  Limited  Traf- 

ficability 169 

§  27.  Individual  and  Compos- 
ite Things 171 


CHAPTER   V 
THE  LAW  OF  LAND 

part    I.       POSSESSION 


§  28.   The   Medieval  Seisin  of 

Land 183 

§  29.  Influence   of    the    Alien 


Law  of  Possession  .     . 
§  .30.   The  Land-Registry  Sys- 
tem    


204 
218 


CHAPTER   VI 

THE   LAW   OF   LAND    (Cojitinued) 

part  II.     the  owNEiisiiiP  of  land 

§  31.    The  Concept  of  Owner-  I   §  .32.    Divided  Ownership    .     .     232 

ship 227   '   §  33.   Coniinunity  Ownership  .     234 

xviii 


CONTENTS 


§  34.  The  Acquisition  of  Own- 
ership by  Contract  .     .     241 

§  35.  Acquisition  of  Owner- 
sliijj  otherwise  than 
by  Contract    ....     253 

§  36.    General  Restrictions 

upon  Ownership     .     .     259 

§  37.    Restrictions  Imposed  by 

Rights  of  Vicinage      .     262 

§  38.    Restrictions    originating 

in  Regalities,  generally     268 

§  39.  Restrictions  originating 
in  the  Regalities  of  the 
Forest  Law  and  the 
Hunting  Law     .     .     .     271 

§  40.  Restrictions  originating 
in  Regalities  of  the  Law 


PAGE 

of  Waters,  Fishery,  and 
Dikes 279 

§  41.  Restrictions  originating 
in  the  Law  of  Mines 
and  Salterns    .     .         .290 

§  42.  Restrictions  upon  Alien- 
ation due  to  Co-rights 
of     Relatives.  (I) 

Rights  in  Expectancy 
and  of  Co-alienation    .     304 

§43.  Same.  (II)  Entailed 
Family-Estates  of  the 
Greater  Nobility      .     .     308 

§44.   Same.       (Ill)      Family 

Trust-entails  ....     310 


CHAPTER  VII 
THE   LAW   OF   LAND    (Continued) 

PART    III.       REAL    RIGHTS 


Topic  1.   Tenurial  Rights 


§  45.  Peasant  Tenures  .  .  .  319 
§  46.  Urban  Leaseholds .  .  .  332 
§  47.   The    Fief ;    the    Feudal 


Law  of  Medieval  Ger- 
many      334 

§  48.   The  Modern  Feudal  Law     341 


Topic  2.   Servitudes 
§  49.   Servitudes,  in  General    .     349   |   §  50.   Particular  Servitudes      .     353 

Topic  3.  Charges  on  Land 

§  51.   Real  Charges,  in  general    356   |   §  .52.   Particular  Land  Charges     368 


Topic  4.   The  Gage  of  Land 


§  53.    The  Older  Germanic  Law 

of  Land  Pledges       .     .     374 


§  54.    The     Modern     Law     of 

Land  Pledges      .     .     .     385 


Topic  5.   Preemption  Rights 

§  55.   Preemption     Rights,    in  I   §  56.    Individual      Preemption 

general 395  |  Rights 399 

xix 


§  57.    Possession    of    Chattels, 

in  aeueral 40i 


CONTENTS 

CHAPTER   yill 

THE   LAW   OF   CHATTELS 

Topic  1.    Possession  of  Chattels 

PAGE  PAQB 


§  58.  Chattel  Actions,  particu- 
larly the  Rule,  "  Hand 
must  Warrant  Hand  "     407 


Topic  2.   Ownership  of  Chattels 

§  59.    The  Origin  and  Content  of  Ownership  in  Chattels 425 

Topic  3.   Acquisition  of  Title  to  Chattels 


§  GO.    Occupancy 426 

§  61.    Accession     of     Fixtures, 

and  Specification     .     .     433 


§  62.  Appropriation  of  Fruits  434 
§  63.  Alienation  of  Chattels  .  436 
§  64.    Positive  Prescription  .     •     439 


Topic  4.   The  Law  of  Chattel  Pledges 


§  65.    The  Older  Law  of  Pledge     440 
§  66.   The     Modern     Develop- 


ment of    the   Law   of 
Chattel  Pledges  ...    447 


BOOK    III.     THE    LAW    OF   OBLIGATIONS 
CHAPTER   IX 

GENERAL  PRINCIPLES 

§  67.    Introductory  Sketch  of  the  General  Development  of  the  Law  of 

Obligations 459 

Topic  1.   Fundamental  Conceptions  of  the  Law  of 
Obligations 


§  68.    Legal  Duty  and  Liabil- 
ity Generally ....     463 
§  69.    Varieties  of  Liability      .     473 


§  70.    Legal  Duty  and  Liability 

in  the  Modern  Law      .     485 


Topic  2.   The  Histohical  Origins  of  Oijligations 


§  7L  Obligational  Contracts: 
Forms  of  Obligational 
and  Liability  Transac- 
tions  490 


§  72.   The  Conclusion  of  a  Con- 
tract in  Modern  Law  .     508 
§  73.    Unilateral  Promises    •     .     513 


Topic  3.  The  Content  of  Obligations 

§  74.   Nude  Obligational  Prom-  I   §  75.   Contracts  for  the  Benefit 

iaea 515   |  of  Third  Persons     .     .     618 

XX 


CONTENTS 

Topic  4.   Performance  and  Non-Performance  of 
Obligations 

PAGE  PAGE 

§  76,   Contractual        Penalties  I   §  77.    Fault    and    Accident   in 

and  Damages      .     .     .     521   |  the  Law  of  Contract    .     527 

Topic  5.   Assignment  of  Obligations  by  Obligee  and 
Obligor 

§  78.  Assignment     of     Claims  I    §  79.    Assignment    of    Obliga- 

by  Obligee     ....     533   |  tions  by  Obligor      .     .     536 

Topic  6.   Cases  of  Several  Debtors  and  Creditors 

§  80.    Plurality  of  Creditors      .     537   |   §  81.   Plurality  of  Debtors  .     .     540 


CHAPTER  X 

SPECIAL  FORMS  OF  OBLIGATIONS 

Topic  1.   Obligations  Ex  Contractu 


§82.    Obligations  ex  contractu, 

generally 544 

§  83.   Contracts  of  Sale    ...  540 

§  84.    Hire  and  Lease  ....  552 
§  85.    Contracts  for  Labor  and 

for  Services    ....  554 


§  86.    Loans  at  Interest   .     .     .     559 
§  87.    Wagering      and      Gam- 
bling       563 

§  88.    Claims  based  upon  Com- 
mercial Paper      .     .     .     565 


Topic  2.   Obligations  based  upon  Torts 
§  89.   Obligations  based  upon  Torts 576 


BOOK   IV.     FAMILY   LAW 


CHAPTER  XI 


MARRIAGE 


§  90.  Introductory :  the  Begin- 
nings of  the  Germanic 
Law  of  the  Family 

§  9L  The  Contracting  of  Mar- 
riage       

§  92.    The  Dissolution  of  INIar- 

riage Oil 

§  93.   Personal  Legal  Relations 

of  the  Spouses     .     .     .     617 


584 


591 


§  94.  The  Law  of  Marital  Prop- 
erty :  (1)  Of  the  Folk- 
laws   621 

§  95.  The  Law  of  Marital 
Property :  (2)  The 
Medieval  Systems   .     .     029 

§  96.  The  Law  of  Marital  Prop- 
erty :  (3)  The  Modern 
Law 646 


CONTENTS 


CHAPTER  XII 
CHILDHOOD 


§  97.  Legitimate  Children. 
(1)  Personal  legal  Re- 
lations between  Par- 
ents and  Children   .     . 


Go7 


PAGE 

§  98.  Legitimate  Children. 
(2)  Relations  nnder 
the  Pi-operty  Law  .     .     6G5 

§  99.   Illegitimate  Children      .     671 


CHAPTER   XIII 
GUARDIANSHIP 


§  100.  General  Development  of 
the  Law  of  Guardian- 
ship       677 


§  101.   Guardianship     of     Mi- 
nors       684 


BOOK   V.     THE   LAW    OF   INHERITANCE 


CHAPTER  XIV 


GENERAL  PRINCIPLES 


§  102.  Origin  and  Nature  of 
the  Germanic  Rules 
of  Succession     .     .     .     691 

§  103.  Devolution  of  the  Her- 
itage      700 


§  101.  Liability  for  Obliga- 
tions of  the  De- 
ceased   705 

§  105.    Plurality  of  Heirs     .     .     708 


CHAPTER   XV 


INTESTATE   SUCCESSION 


§  106.    Systems    and     Degrees 

of  Blood  Relationship     712 

§  107.    Succession   of    Kindred 

to  the  Inheritance      .     722 


§  108.   Succession  by  Spouses  .     736 
§  109.   Rights  of  Escheat     .     .     737 


CHAPTER  XVI 
TESTAMENTARY  SUCCESSION 


§  110.    Gifts   "Mortis    Causa" 

in  the  Old  Law      .     . 

§111.    Contracts  of  Inheritance 


710 
746 


§  112.   The  Testament 
§  113.    The  Executor  . 


XXI 1 


749 
754 


CONTENTS 


CHAPTER  XVII 


SPECIAL   RULES   OF   SUCCESSION   IX   THE 
INHERITANCE    OF   LAi\DS 


§  114.  The  Inheritance  of 
Fiefs.  Feudal  Suc- 
cession       758 

§  115.  Succession  to  Entailed 
Family -estates      and 


PAGE  PAGE 

under  Family  Trust- 
Entails      761 

§  116.    Succession    to    Peasant 

Estates 763 


Index 767 


XXlll 


EDITORIAL  PREFACE  TO  THIS  VOLUME 
By  Ernest  G.  Lorenzen^ 

The  importance  of  Huebner's  History  of  Germanic  Private  Law 
to  the  student  of  legal  history,  philosophy  of  law,  and  comparative 
law  is  set  forth  in  such  eloquent  language  in  the  introductions  to 
this  volume  by  Professors  Vinogradoff  and  Walz  as  to  make  any 
further  observations  on  this  point  both  unnecessary  and  unfitting. 
For  a  general  description  of  the  work  the  following  brief  quotation 
from  a  review  in  one  of  the  leading  German  periodicals,  "  Zeit- 
schrift  fiir  Bundesstaatsrecht  und  Volkerrecht ",  may  suffice : 
"  Huebner's  History  of  Germanic  Private  Law  is  a  treatise  on  the 
private  law  of  Germanic  countries  the  several  institutions  of  which 
are  traced  in  their  development  from  their  origin  to  the  present 
time.  .  .  .  An  extraordinary  command  of  the  vast  literature  of 
the  subject  and  a  style,  perfect  in  form  and  possessing  great 
lucidity,  characterize  the  treatise,  which  is  the  only  one  incorpo- 
rating the  latest  investigations  in  this  field."     (Vol.  IV,  p.  519.) 

A  few  data  concerning  the  life  and  work  of  the  author  of  this 
volume  will  be  of  interest.  Rudolph  Huebner  was  born  in  Berlin 
on  September  19,  1864.  He  took  a  doctor's  degree  in  law  at  the 
University  of  Berlin  and  was  Privatdozent  at  that  institution  for 
several  years.  He  has  been  professor  of  law  at  the  universities  of 
Bonn  and  Rostock  and  at  the  present  moment  occupies  the  chair  of 
Legal  History,  German  Civil  Law,  and  Public  Law  at  the  Univer- 
sity of  Giessen.  Huebner's  literary  activities  have  been  along  the 
line  of  Germanic  law.  His  most  important  contributions  in  this 
field  before  the  publication  of  the  present  treatise  have  been  :  "  Die 
donationes  post  obitum  und  die  Schenkungen  mit  Vorbehalt  des 
Niessbrauchs  im  jilteren  deutschen  Recht";  "  Gerichtsurkunden 
der  friinkischen  Zeit "  ;  "  Immobiliarprozess  der  friinkischen  Zeit "  ; 
"J.  Grimm  und  das  deutsche  Recht."  In  all  of  these  works  Hueb- 
ner has  shown  himself  to  be  a  follower  of  Otto  v.  Gierke  and  Hein- 
rich  B runner. 

The  translation  of  Huebner's  History  of  Germanic  Private  Law 
into  English  was  a  task  beset  with  the  greatest  difficulties,  which 

*  Of  the  Editorial  Committee  ;  Professor  of  Law  in  Yale  University. 

XXV 


EDITORIAL   PREFACE   TO    THIS    VOLUME 

only  a  person  of  great  linguistic  ability  and  of  the  broadest  legal 
training  could  successfully  meet.  Fortunately  Professor  Philbrick 
possessetl  all  of  these  qualifications  in  an  eminent  tlegree.  lie  took 
his  Ph.  D.  at  Harvard  University,  where  he  specialized  in  history 
and  political  science.  Having  been  granted  an  honorary  John 
Harvard  Travelling  Fellowship,  he  continued  his  studies  in  Berlin, 
Paris,  and  London.  Subsequently  he  pursued  archive  researches 
in  Cuba  and  in  Spain.  He  took  his  LL.  B.  degree  at  Columbia 
University,  and  was  admitted  to  the  New  York  Bar.  Since  1915 
he  has  been  professor  of  law  at  the  University  of  California,  where 
he  is  in  charge  of  the  courses  in  foreign  and  comparative  law  and 
legal  theory.  Professor  Philbrick  has  addressed  himself  to  his  task 
with  great  enthusiasm  and  success,  and  has  spared  no  effort  to  make 
the  translation  both  accurate  and  readable. 

The  first  edition  of  the  present  work  was  published  in  1908. 
The  translation  is  of  the  second  edition,  which  appeared  in  1913 
and  brought  the  history  of  Germanic  Private  Law  down  to  date 
by  tracing  its  development  into  the  Swiss  Civil  Code,  of  De- 
cember 10,  1907. 


xxvi 


INTRODUCTION   TO   THIS   VOLUME 

By  Sir  Paul  Vinogradoff  ^ 

The  title  of  Professor  Huebner's  book  is  "Principles  of  Germanic 
Private  Law",  and  yet  it  has  been  rightly  included  into  a  collec- 
tion of  works  on  Legal  History.  This  is  in  itself  characteristic; 
the  fact  is  that  contemporary  German  law  is  not  only  essentially 
a  product  of  historical  development,  as  indeed  all  varieties  of 
Law  are,  but  that  it  was  reconstructed  and  formulated  in  oppo- 
sition to  another  great  jurisprudential  system  — ^the  RomarTorie^^" 
as  the  outcome  of  a  peculiar  national  process  of  legal  thought. 
In  this  way  its  positive  rules  and  institutions  are  liable  to  be 
traced  to  leading  ideas  which  have  manifested  themselves  in  a 
more  or  less  distinct  manner  in  previous  history.  The  learned 
and  talented  author  himself  belongs  to  a  moderate  section  of  the 
so-called  Germanistic  school,  and  may  be  said  to  follow  O.  Gierke 
in  a  general  way,  although  he  is  very  careful  to  notice  authorita- 
tive opposition,  and  tries  on  every  occasion  to  state  his  conclusions 
with  as  much  academic  impartiality  as  possible.  From  the  above 
mentioned  point  of  view  the  subject  commands  indeed  the  great- 
est interest.  It  raises  questions  of  the  highest  importance  not 
only  for  the  practical  lawyer  and  the  legal  historian,  but  for  the  stu- 
dent of  jurisprudence.  It  presents  a  concrete  test  for  the  appli- 
cation of  various  theories  as  to  the  national  trend  of  legal  thought, 
as  to  the  leading  distinctions  between  periods,  as  to  the  possibility 
of  a  "reception"  of  foreign  law,  as  to  the  value  of  comparative 
and  of  analytical  study,  etc. 


Let  us  rehearse  briefly  the  course  of  the  development  which 
culminated  in  the  formation  of  the  system  of  law  laid  down  in 
the  "  Biirgerliches  Gesetzbuch  ",  the  Civil  Code  of  the  German 
Empire.  The  threads  of  the  literary  controversy  need  not  be 
followed  into  more  remote  antiquity  than  the  beginning  of  the 
nineteenth  century,  when,  at  the  close  of  the  Emancipation  War 

[•  D.  C.  L.,  F.  B.  A.;  Corpus  Professor  of  Jiirisprudence  in  the  Uni- 
versity of  Oxford ;  Fellow  of  the  Academy  of  Sciences  of  Petrograd.  —  Ed.] 

xxvii 


INTRODUCTION  TO   THIS   VOLUME 

against  Napoleon,  the  famous  conflict  of  opinion  between  Thibaut 
and  Savigny  led  to  the  formation  of  the  so-called  ""Historical 
School  of  Law."  The  subject  of  dispute  was  the  formulation  of 
a  general  and  modern  code  of  law  for  the  emancipated  German 
States  which  should  take  the  i)lace  of  that  strantjc  figment  — 
"the  Common  Law  of  Uome  as  practised  in  Germany."  Savigny 
protested  against  such  an  undertaking  as  expressing  the  concep- 
tion that  law  comprised  a  set  of  arbitrary  rules  contrived  with 
more  or  less  skill  to  meet  the  requirements  of  actual  life,  without 
any  reference  to  national  traditions  and  to  the  peculiarities  of 
social  jisycliology  of  the  people  who  were  to  be  operated  upon. 

Li  formulating  his  own  views  Savigny,  Eichhorn,  and  the  other 
leatlers  of  the  new  school  came  to  consider  the  growtii  of  law  as 
essentially  an  organic  process,  akin  to  the  evolution  of  language, 
of  folklore,  of  religion,  unconscious  and  half  conscious  in  its  most 
profound  currents,  but  directing  the  whole  of  the  ostensible  life 
of  juridical  rules  and  corresponding  rights.  From  this  psycho- 
logical point  of  view,  shari)ly  opposed  to  the  rationalistic  logic  of 
the  "Aufklarung"  or  "age  of  enlightenment",  the  Historical 
School  of  Law  joined  hands  with  the  mythological  and  linguistic 
researches  of  a  Jacob  Grimm,  who  himself  contributed  to  the 
work  of  the  lawyers  by  writing  his  remarkable  "German  Legal 
Antiquities"  ("Deutsche  Rechtsalterthiimer").  What  is  more, 
it  may  be  considered  as  one  of  the  principal  varieties  of  the  Ro- 
mantic movement  with  its  determined  opposition  to  jnire  intel- 
lectualism,  to  the  cosmopolitan  violence  of  the  Revolution  and  of 
Napoleon's  regime.  Burke  and  Wordsworth  have  given  strong 
expression  to  the  organic,  historical  teaching  of  that  period  as 
far  as  Great  Britain  was  concerned.  But  the  application  to 
jurisprudence  was  mainly  the  work  of  German  students.  English 
writers  were  not  much  affected  by  the  crisis,  because  in  their 
case  there  was  no  danger  whatever  of  a  subversion  of  tra<litional 
development:  they  liad  rather  to  face  the  other  extreme;  and 
the  rationalistic  individualism  of  Bentham  ^  was  hailed  as  a  deliv- 
erance from  the  stubborn  ])assi\ity  of  an  Eldon  or  an  Ellenborough. 
Thus  it  was  reserved  for  a  late  comer  like  Sir  11.  Maine  to  i)opu- 
larize  the  doctrines  of  Savigny  in  EnglandT  and,  by  the  time  he 
appeared  on  the  scene,  new  ideas  had  supervened  which  gave 
the  whole  problem  an  entirely  dilVerent  asix'ct.'^ 

•  As  to  Bentham's  characteristic  avcr.sioii  for  historical  authority,  see 
e.g.  Works,  VIII,  392,  442. 

2  Cf.  P.  Vinofjrudog,  "Teaching  of  Sir  Ilonry  Maine"  (Oxford,    1904), 
p.  9. 

xxviii 


INTRODUCTION   TO    THIS    VOLUME 

Let  US  turn  back,  however,  to  the  main  line  of  our  inquiry. 
Savigny  devoted  himself  almost  entirely  to  the  study  of  Roman 
Law.  His  principal  contribution  to  German  legal  history  con- 
sisted in  the  indirect  influence  of  his  History  of  Roman  Law  in 
the  Middle  Ages,  which  was  intended  to  show  that  the  reception 
of  Roman  doctrines  by  medieval  Europe  was  by  no  means  the 
result  of  mechanical  submission  and  copying,  but  rather  a  grad- 
ual absorption  of  rules  and  examples  by  the  less  civilised  tribes 
of  Teutonic  invaders.  The  work  of  the  first  period  of  the  "  His- 
torical School  of  Law"  which  has  still  to  be  taken  into  account  in 
the  study  of  German  private  law  is  represented  broadly  in  Eich- 
horn's  monumental  "History  of  German  State  and  Law" 
("Deutsche  Staats-  und  Rechtsgeschichte")  and  in  his  text-book 
on  German  Private  Law^  Eichhorn  had  to  deal  with  the  frag- 
mentary utterances  of  Germanic  legal  thought  embodied  in  the 
legislation  and  jurisprudence  of  the  numerous  German  States 
before  their  re-union.  He  was  struck  by  the  many  points  of 
similarity  in  these  disconnected  laws  and  explained  them  by  com- 
mon origin  —  they  were  for  him  the  various  branches  of  the  same 
tree,  which  produce  the  same  kind  of  leaves  and  fruit  because  the 
same  sap  runs  through  them  all  from  the  common  roots  and 
common  stem. 

Albrecht's  monograph  on  the  "  Geivere"  (the  Germanic  concep- 
tion of  possession)  is  perhaps  the  most  characteristic  book  con- 
cerning another  side  of  the  Germanistic  theory.  It  was  written 
to  prove  that  the  treatment  of  possession  in  the  ancient  and 
medieval  law  of  the  Germanic  people  was  fundamentally  different 
from  the  development  of  the  corresponding  doctrine  in  Roman 
law.  In  this  w^ay  the  two  systems  were  contrasted  one  with  the 
other,  not  in  vague  generalities,  but  in  regard  to  the  specific 
applications  of  a  leading  principle  of  juridical  thought.  A  fur- 
ther link  was  added  to  the  chain  by  Beseler  in  his  famous  book 
on  "  Popular  Law  and  Lawyers'  Law  ",  in  which  the  practical 
common  sense  of  Germanic  legal  lore  was  contrasted  with  the 
narrow  and  pedantic  treatment  of  juridical  questions  by  lawyers 
trained  on  Roman  ('oetrine.  The  spirit  of  popular  revolt  in 
which  the  task  was  conceived  and  carried  out  by  Beseler  reminds 
one  of  the  popular  hostility  against  the  Doctors  of  foreign  law 
entertained  by  the  people  at  large  in  the  sixteenth  century.  In 
a  sense,  though  with  much  greater  learning  and  a  wider  view  of 
the  field,  Gierke  may  be  said  to  follow  on  the  same  lines.  He  is 
animated  by  patriotic  zeal  when  he  tries  to  present  side  by  side 

xxix 


INTRODUCTION    TO    THIS    VOLUME 

the  three  great  eiirrents  of  k><j;al  (lt'^"eK)pl^ent  which,  iiec()r(lin<^ 
to  his  view,  dominate  the  lethal  thouglit  of  Western  Europe  — 
the  Roman,  tlie  Canonistic,  and  the  Germanistic  one.  He  has 
chosen  the  hnv  of  "Association"  ("Genossenschaft")  to  prove 
to  what  extent  their  leading  ideas  are  different,  and  how  great 
an  importance  must  be  assigncxl  to  the  Germanic  A'iew,  with  its 
reahstic  treatment  of  the  corporate  body,  thoroughly  opposed 
as  well  to  the  Romanesque  theory  of  fiction  as  to  the  Canonistic 
line  starting  from  the  idea  of  a  "foundation"  ("Anstalt"). 

In  this  way  we  can  undoubtedly  observe  a  continuous  stream 
of  research  and  reflection  running  in  the  channel  of  national  self- 
consciousness  ever  since  SaN'igny  im})arted  the  first  impulse  by 
his  revolt  against  cosmopolitan  rationalism,  and,  in  spite  of  many 
modifications  of  the  doctrine,  the  main  object  —  interpreting 
details  from  this  view-j)oint  of  national  psychology  —  is  still 
well  to  the  fore.  We  must  not  omit  to  notice,  however,  that 
in  German  jurisprudence  itself  strong  tendencies  of  a  diff'crent 
kind  have  found  powerful  expression  and  have  proved  in  many 
respects  to  be  more  scientific  and  more  progressive. 

I  do  not  mean  in  this  case  the  criticism  of  details  and  the  struggle 
for  supremacy  on  the  part  of  representati\'es  of  the  Romanistic 
school,  like  Windscheid,  Bekker,  Dernburg.  They  were  bound 
to  take  up  a  more  cosmopolitan  j^oint  of  view  and  they  did  so ; 
but  apart  from  some  success  as  regards  particular  points,  their 
opposition  has  not  prevailed  against  the  onslaught  of  the  Ger- 
manists,  and  they  barely  succeeded  in  keeping  some  of  their 
positions  on  the  debatable  ground  of  practical  codification.  But 
there  is  another  set  of  thinkers  who  deserve  greater  attention. 
Their  point  of  departiu^e  may  be  traced  to  the  work  of  Ihering 
and  Gerber.  Ihering  holds  a  great  ])lace  in  the  history  of  nine- 
teenth-century juridical  thought,  and  the  evolution  of  his  ideas 
has  been  significant  of  the  gradual  working  out  of  leading  prin- 
ciples which  have  shaped  juridical  o])inion  in  Europe.  Already 
in  the  first  stage  of  his  career,  cnlniinating  in  the  work  on  the 
"Spirit  of  Roman  Law",  he  took  up  an  attitu(h'  tliat  clashed  with 
the  views  of  the  Historical  School  of  Law  as  represented  by 
Savigny,  Eichhorn,  and  Puchta.  He  laid  stress  on  the  technical 
side  of  legal  method,  and  contended  that  the  popular  notions  of 
justice  and  equity  constituted  merely  a  background  for  the  for- 
'  mation  of  legal  doctrine  efi"ecte<l  by  the  activity  of  legal  experts 
—  legislators,  judges,  pleaders,  interpreters  of  law. 

Altogether  the  historical  side  of  jurisprudence,  though  of  the 

XXX 


INTRCDLCTION    TO    THIS    VOLUME 

utmost  importance  for  explaining  the  present  and  observing  the 
pecuHarities  of  juridical  thought,  was  declared  to  be  an  introduc- 
tion to  another  and  more  important  side,  facing  the  problems  of 
the  future.  Ihering  had  the  right  to  paraphrase  for  the  use  of 
his  theory  the  famous  reflections  of  Goethe's  Faust  on  the  mean- 
ing of  the  Gospel  of  St.  John,  ch.  I :  "In  the  beginning  there  was 
the  Word."  Surely  the  true  sense  requires  a  different  version 
—  "  In  the  beginning  there  was  the  Deed."  Inasmuch  as  legal 
rules  are  acts  conceived  as  directions  for  men's  conduct,  the  crea- 
tive character  of  law  has  to  be  recognised  quite  as  much  as  its 
historical  origins. 

In  further  elaboration  of  this  idea  Ihering  came  to  consider 
law  chiefly  as  a  factor  of  social  evolution.  All  legal  rules  are  in 
the  last  instance  attempts  to  master  social  problems  by  means 
of  State  compulsion.  Regarded  from  the  point  of  view  of  the 
relations  between  individuals  and  the  coordinating  Common- 
wealth, their  object  is  the  recognition  and  protection  of  certain 
interests,  and  thereby  they  create  rights,  —  "siibjectiiT  rights  ", 
as  they  say  in  Germany.  Taking  up  his  stand  on  the  social  func- 
tions of  law,  Ihering  was  necessarily  led  to  formulate  three  conse- 
quential positions  of  the  utmost  importance.  (1)  He  entered  an 
emphatic  protest  against  the  purely  analytical  method  of  dealing 
with  questions  of  law.  He  subjected  to  ridicule  and  to  scornful 
criticism  those  of  his  colleagues  who  put  all  their  faith  in  dialec- 
tical exercises  of  subsumption  and  constructions,  reproaching 
them  with  living  in  a  fool's  paradise  of  juridical  abstraction 
("Der  juristische  Begriffshimmel").^  As  against  the  barren 
pedantry  of  these  scholastic  exercises,  he  set  the  duty  of  the 
lawyer  never  to  lose  sight  of  the  practical  needs  involved.  As 
one  illustration  of  the  far-reaching  significance  of  this  line  of 
thought,  I  may  be  allowed  to  call  attention  to  Geny's  more  recent 
book  on  the  interpretation  of  law,  conceived  in  the  entirely  dif- 
ferent surroundings  of  French  practice  and  yet  insisting  on  that 
very  necessity  of  breaking  with  purely  dialectical  methods  of 
interpretation  for  the  sake  of  the  requirements  of  actual  life. 
(2)  A  sociological  standard  had  to  be  set  up  for  the  proper  direc- 
tion of  juridical  activity,  and  Ihering  found  suclf  a  standard  in 
the  conception  of  social  utility.  His  "Aim  of  Law"  (Zweck  im 
Recht)  is  to  a  great  extent  devoted  to  investigating  the  grounds 
of  social  cooperation,  and  the  author  has  spared  no  effort  to 
make  it  clear  that  in  fashion,  customs,  ordinary  morality,  and 
1  From  "Scherz  und  Ernst  in  der  Jurisprudenz ". 
xxxi 


INTRODUCTION    TO    THIS    VOLUME 

ethical  theory,  as  well  as  in  law,  societies  are  working  out  the 
conditions  of  their  existence  and  welfare  by  educating  individuals 
to  adopt  and  to  follow  rules  of  conduct  inspired  by  the  aim  of 
social  utility.  (3)  The  study  of  the  historical  process,  as  far  as 
it  concerns  law,  has  to  be  freed  from  the  obsession  of  national 
peculiarities.  While  fully  recognizing  that  all  juridical  problems 
have  to  be  considered  from  the  historical  point  of  view,  Ihering 
insists  that  it  is  not  merely  the  element  of  tradition  that  has  to 
be  taken  into  account,  but  the  element  of  efficiency.  As  the  social 
aim  is  the  final  test  of  legal  rules,  it  is  clear  that  the  latter  have 
to  change  with  circumstances.^  It  would  be  preposterous  to 
suppose  that  modern  Germany  or  modern  France,  or  any  other 
modern  country,  can  be  constrained  to  proceed  in  the  track  of 
medieval  precedents  or  of  tribal  custom.  Each  age  has  to  shift 
for  itself;  and  though  national  character  may  influence  politics 
and  legislation,  the  principal  considerations  of  a  lawyer  must  be 
drawn  from  a  lively  sense  of  reality,  of  the  immediate  difficulties 
and  requirements  of  the  age. 

Gerber,  who  joined  Ihering  in  editing  the  "Journal  of  Dog- 
matic Jurisprudence",  held  similar  views  and  expressed  them 
most  forcibly  in  his  treatment  of  public  as  well  as  of  private  law. 
His  writings  are  also  noteworthy  in  so  much  as  they  contained 
very  effective  polemical  excursions  against  several  concrete  points 
in  the  teaching  of  the  Germanistic  School.  He  did  not  admit  any 
special  Germanistic  source  of  law  in  the  shape  of  "autonomous" 
formation,  nor  did  he  recognize  a  peculiar  ])rinciple  of  "Genos- 
senschaft"  or  a  distinctive  treatment  of  real  property. - 

Although  Ihering  and  Gerber  did  not  form  a  compact  group 
in  the  same  sense  as  the  leaders  of  the  Historical  School,  their 
literary  influence  has  been  exceedingly  great,  both  in  Germany 
and  abroad.  In  a  sense  it  may  be  said  that  Ihering  was  one  of 
the  most  prominent  initiators  of  the  Sociological  School  of  juris- 
prudence. In  any  case  his  teaching  of  historical  evolution  di- 
rected towards  conscious  aims  has  presented  a  powerful  antidote 
to  the  traditional  superstitions  of  the  Romantic  movement  and 
of  its  nationalistic  sequels.  It  came  at  a  time  when  individualistic 
ideals  began  to  give  way  on  all  sides  before  socialistic  aspirations ; 
and,  whatever  may  be  our  own  stan<lpoint  in  the  contemporary 
struggle  of  ideas,  it  cannot  be  denied  that  the  juridical  thought  of 

*  See  e.g.  "Geist  dos  romisnhon  Roflits",  III,  part  1,  296. 
^  Lnndshcrg,  " Geschichto  tier  (Iciitsclicii  Rcehtswissenschaft",  III,  part 
2,  p.  784. 

XXX  ii 


INTRODUCTION   TO   THIS    VOLUME 

the  new  century  has  been  deeply  affected  by  this  sociahstic  cur- 
rent.^ Perhaps  the  most  eloquent  tribute  to  the  farsightedness 
and  originality  of  Ihering  may  be  found  in  the  fact  that  the  most 
powerful  representative  of  Germanistic  jurisprudence,  Otto  von 
Gierke,  has  striven  to  unite  the  appeal  derived  from  the  social 
aim  of  a  time  which  has  discarded  the  tenets  of  individualism  with 
the  arguments  drawn  from  national  character  and  ancient  folklore. 
In  spite  of  this  there  remains  the  fundamental  divergence  of 
orientation :  while  one  thinker  sees  in  the  socialistic  bent  of 
German  law  a  legacy  of  the  past,  the  other  looks  upon  it  as  an 
adaptation  to  the  requirements  of  the  present  and  a  promise  for 
the  future. 

II 

Let  us  now  consider  some  of  the  arguments  marshalled  by 
Germanists  for  the  purpose  of  establishing  their  theory  of  juridical 
evolution.  The  main  obstacle  with  which  they  have  had  to  deal 
in  their  endeavours  has  been  the  intrusion  of  the  Roman  legal 
system.  It  has  thrust  itself  right  into  the  midst  of  the  vernacu- 
lar process ;  and  quite  recently  it  threatened  to  confirm  its  domi- 
nant position  by  taking  the  leading  part  in  Imperial  codification. 
The  first  question  which  Eichhorn,  Gierke,  Huebner,  and  other 
Germanists  have  to  answer  amounts  to  this :  How  is  it  that, 
at  the  critical  period  when  the  modern  history  of  Europe  started, 
an  independent  current  of  legal  thought  like  the  German  has  had 
to  give  way  to  a  system  of  foreign  origin  formed  in  entirely  dif- 
ferent surroundings? 

As  regards  the  process  of  so-called  Reception,  a  general  agree- 
ment has  been  reached,  at  the  close  of  strenuous  investigation. 
Apart  from  the  various  channels  through  which  the  higher  cul- 
ture of  Rome  permeated  barbaric  Societies,  apart  from  the  influ- 
ence of  "vulgar"  Roman  law  insisted  upon  by  Savigny  and 
especially  illustrated  by  the  labours  of  Conrat,  apart  from  the 
doctrinal  influence  of  the  early  juridical  renaissance  of  the  glos- 
sators and  postglossators,  the  Reception  of  the  entire  Corpus  of 
Justinian's  law  by  the  German  courts  and  universities  in  the 
XVth  century  was  clearly  a  historical  necessity.  It  certainly 
created  confusion  and  called  forth  hostility  among  the  common 
people  and  in  the  ranks  of  the  Schoften.  But  it  was  the  best 
means  for  providing  the  innumerable  political  bodies  of  the  so- 
called  Empire  with  a  common  law  which  was  abreast  of  the  re- 

'  Cf.  Dicey,  "Law  and  Opinion",  258  ff. 
xxxiii 


INTRODUCTION   TO   THIS   VOLUME 

quiremeiits  of  a  modern  capitalistic  economy,  of  extensive  trade 
relations,  and  of  the  growing  power  of  territorial  sovereigns. 
Even  Gierke  admits  that  the  Reception  l)rou<i;ht  juridical  progress, 
especially  in  the  domain  of  contract  relations,  a  most  important 
branch  of  law  in  times  of  mobilized  wealth  and  frequent  com- 
mercial transactions. 

And  yet,  it  is  contended,  the  sway  of  a  learned  judicature 
trained  in  the  study  of  the  Corpus  Juris  arrested  the  development 
of  native  juridical  thought,  favoured  pedantic  abstruseness,  and 
threatened  eventually  to  stifle  attempts  at  an  up-to-date  han- 
dling of  the  law.  The  chasm  between  Romanistic  doctrine  and 
the  real  life  of  modern  Germany  became  especially  apparent  when 
the  regeneration  of  the  German  Empire  made  it  possible  and 
necessary  to  draft  a  general  Civil  Code  for  the  great  Common- 
wealth. The  conflict  between  the  Romanists  and  the  Germanists 
was  transferred  from  the  pages  of  textbooks  and  pamphlets  to 
the  meetings  of  the  Commission  appointed  to  elaborate  the  new 
law.  The  drastic  events  of  the  concluding  years  of  the  nine- 
teenth century  are  still  present  to  our  memory,  —  the  production 
of  the  first  draft  under  Windscheid's  guidance  on  the  lines  of 
Romanistic  doctrine,  the  indignant  protest  of  Gierke  and  other 
Germanists,  the  revision  of  the  text  in  the  second  and  final  com- 
mission with  its  compromise  between  the  rival  sides. 

I  should  here  like  merely  to  remind  the  reader  of  the  most  strik- 
ing literary  production  of  that  time,  —  Gierke's  book  on  the 
"Entwurf  ",  or  Draft,  which  summarizes  in  convenient  form  the 
principal  points  of  contention  between  the  two  schools.  Gierke 
lays  particular  stress  on  the  pedantic,  abstract  manner  in  which 
legal  doctrines  were  stated  and  developed  in  the  Draft  (e.g.  the 
titles  on  possession).  This  method  seems  to  him  not  only  to  be 
characteristic  of  the  doctrinaire  spirit  of  professional  reflection, 
but  to  be  explainable  by  the  foreign  material  severed  from  real 
life ;  it  would  have  been  sufficient  to  turn  to  the  eminently  prac- 
tical treatment  of  the  "Gewere"  in  German  medieval  law,  in 
order  to  endow  that  chapter  on  possession  w^ith  the  required  con- 
creteness  and  common  sense.  The  whole  aspect  of  the  law  of 
things  is  vitiated,  according  to  the  Germanistic  critic,  by  the  one- 
sided way  in  which  absolute  property  ("dominium")  is  insisted 
upon  in  the  Draft.  It  is  contrary  to  all  the  traditions  of  Ger- 
manic law,  which  always  recognised  the  superior  claims  of  .society 
and  abstained  from  exaggerating  the  rights  of  individuals.  In 
the  law  of  persons,  again,  the  Draft  does  not  take  sufficient  account 

xxxiv 


INTRODUCTION    TO    THIS    VOLUME 

of  the  social  combinations  of  individuals  in  the  family,  in  the  re- 
lation between  master  and  servant,  in  the  treatment  of  leases.  All 
these  and  other  kindred  subjects  are  disposed  of  as  if  the  persons 
entering  into  such  relations  were  mere  animated  counters  and 
their  associations  casual  sums  to  be  dissolved  or  combined  at 
pleasure.  In  regard  to  juridical  persons,  Gierke  reproaches  the 
authors  of  the  Draft  with  having  overlooked  the  most  vital 
feature  of  Germanistic  juridical  thought,  the  realistic  conception 
of  the  "  Genossenschaft  ",  which  is  anj-thing  but  a  fiction,  is  en- 
dowed with  a  will  and  a  personality  of  its  own,  and  is  capable  not 
only  of  undertaking  acts  in  law,  but  of  assuming  the  responsibility 
for  them  as  well  in  contract  as  in  tort.  As  regards  family  law, 
it  is  shown  that  the  Draft  is  guilty  of  a  ridiculous  perversion  of 
the  conception  of  the  father's  power,  which  appears  in  the  extraor- 
dinary light  of  a  substitute  for  guardianship.  Altogether,  in 
the  judgment  of  the  critic,  the  Romanistic  production  under 
discussion  may  serve  as  a  kind  of  "reductio  ad  absurdum"  of 
the  attempt  to  build  up  a  Code  for  modern  Germany  on  the  basis 
of  Justinian's  antiquated  individualism.^ 

Ill 

It  is  out  of  the  question  for  us  to  investigate  here  the  actual 
course  of  legal  development  in  Germany  in  its  dependence  on 
Teutonic  and  Romanistic  origins.  But  I  should  like  to  subject 
at  least  one  important  department  of  legal  thought  to  a  more 
detailed  examination.  Let  us  select  for  this  purpose  the  doctrine 
of  possession.  It  forms  one  of  the  principal  parts  of  the  law  as 
to  things;  it  has  given  rise  to  animated  controversies  between 
leading  jurists ;  and  it  has  been  declared  by  Germanists,  follow- 
ing in  the  footsteps  of  x\lbrecht,  to  embody  legal  conceptions  of 
a  peculiar  stamp  characteristic  of  Teutonic  legal  lore  and  exert- 
ing their  distinctive  influence  up  to  our  own  days. 

Let  us  dwell  for  a  moment  on  the  debatable  ground  which  has 
been  the  bone  of  contention  between  the  rival  constructions  of 
Savigny  and  Ihering,  tlie  principal  German  exponents  of  juris- 
prudential theory  on  the  subject.  It  is  not  necessary  to  enter 
into  a  minute  analysis  of  the  subject  in  order  to  see  the  strong 
and  the  weak  sides  of. these  rival  contentions.  Savigny,  taking 
his  instigation  from  great  Roman  jurists,  more  especially  from 
Paulus,  brought  into  strong  relief  the  element  of  intention  in  the 

1  See  e.g.  "Entwurf ",  p.  19. 
XXXV 


INTRODUCTION    TO    THIS    VOLUME 

idea  of  possession.  It  is  the  conscious  assertion  of  power  over  a 
thing  which  originates  possession,  not  its  casual  or  \'icarious  deten- 
tuMi.  The  famous  expression  "animus  domini"  was  not  alto- 
gether well  chosen,  as  it  held  itself  too  narrowly  to  the  notion  of 
"dominium"  —  property,  ownership;  hut  the  central  idea  that 
to  claim  possession  of  a  thing  is  the  same  as  to  assert  "this  thing 
is  mine  ",  does  not  admit  of  doubt.  Such  a  claim  admits  of  many 
variations  in  kind,  and  this  is  the  reason  why  it  lias  been  para- 
phrased in  ancient  and  in  modern  times  in  terms  wider  than 
that  indicated  by  "dominus"  {''  Seairo^ovTO'i  " ,  —  Theophilus  : 
"animus  sibi  habendi").^  Unfortunately  Savigny  and  his  School 
have  gone  a  great  deal  further ;  they  have  surmised  that,  because 
the  claim  to  possession  is  a  subjective  assertion  of  power,  the 
protection  of  possession  is  bound  to  follow  on  the  same  lines ;  and 
the  well-known  teaching  as  to  "corpus"  and  "animus"  has  been 
built  up  in  consequence.  Besides,  they  have  assumed  that  their 
juridical  analysis  of  the  Roman  doctrine  affords  a  key  to  a  general 
jurisprudential  treatment.  Roman  lawyers  themselves  varied 
greatly  in  this  respect,  to  peculiar  points  of  view.  The  Romans 
themselves  did  not  consistently  hold  to  the  same  conclusions  as 
regards  the  position  of  lessees  or  of  depositaries,  while  other 
systems  of  law  started  from  entirely  different  distinctions.  Ihe- 
ring  had  no  difficulty  in  showing  this,  and  he  took  advantage  of 
the  opportunity  to  put  forward  what  he  calls  the  "objective" 
standard  for  granting  or  denying  possession.  According  to  him, 
it  is  the  protection  of  certain  interests  by  the  State  that  raises 
them  to  a  sphere  of  legally  recognised  possession,  and  it  depends 
on  considerations  of  public  utility  whether  the  Commonwealth 
considers  the  grown-up  son,  the  bailee,  or  the  lessee,  worthy  or 
unworthy  of  such  special  protection.  The  fact  that  the  lessee 
was  denied  possession  and  had  to  content  himself  with  a  deten- 
tion, protected  by  contract,  speaks  volumes  for  the  historical  set- 
ting of  the  Roman  doctrine,  which  considered  him  for  centuries 
to  be  a  subordinate  client  of  a  householder  in  whom  the  power 
over  the  estate  and  its  legal  protection  primarily  rested.  In  his 
polemical  zeal,  Thering  carried  his  contention  undoubtedly  too 
far,  made  rather  risky  attempts  to  confute  the  Roman  juris- 
consults themselves,  and  overlooked  the  importance  of  the  ele- 
ment of  intention.  lie  also  left  entirely  out  of  account  the  influ- 
ence of  Greek  juridical  notions,  which  became  more  and  more 

1  I  may  romark  that  Justice  O.  W.  Holmes'  account  of  Savigny's  views 
lays  (as  it  seems  to  me)  too  great  a  stress  on  its  metaphysical  connotation. 

xxxvi 


INTRODUCTION   TO    THIS    VOLUME 

considerable  towards  the  third  century  B.C.  But  in  spite  of  these 
and  other  defects,  he  succeeded  in  his  main  endeavour  to  present 
in  a  strong  Hght  the  historical  evolution  of  possessory  remedies 
in  consequence  of  social  needs  and  aims. 

It  is  natural  therefore  to  connect  Ihering's  teaching  with  the 
movement  towards  legal  reform  spreading  over  Germany  in  the 
last  quarter  of  the  nineteenth  century.  His  speculations  opened 
the  way  towards  a  bold  revision  of  accepted  Romanistic  doctrines  ; 
and  it  may  be  said  that  the  modern  Germanists  went  with  him 
part  of  the  way.  They  brought  forward  a  theory  of  possession 
which  was  derived  from  medieval  sources,  but  still  held  good  in 
the  legislation  of  particular  States  (for  example,  Prussia),  and 
started  from  juridical  ideas  in  entire  disagreement  with  those 
which  had  obtained  in  Rome  and  had  been  carried  over  to  Ger- 
many by  the  Reception.  The  central  notion  of  their  theory  was 
the  "Gewere",  defined  as  the  matter  of  fact  expression  of  real 
rights.^ 

It  was  not  an  equivalent  of  Roman  "possession",  because,  as 
Huebner  has  expressed  it,  the  "  Gewere  "  included  a  necessary  ele- 
ment of  "right"  ;  its  assertion  and  defence  started  from  the  fact  of 
possession,  but  tended  towards  title  as  the  established  and  recog- 
nised centre  of  a  right.  This  being  so,  the  German  law  did  not 
develop  a  system  of  possessory  actions ;  when,  by  way  of  excep- 
tion, it  had  to  approach  the  matter  in  dispute  from  the  side  of 
possession,  it  did  so  not  by  the  help  of  independent  remedies,  but 
by  means  of  a  preliminary  investigation  (in  cases  of  disturbance 
of  possession  and  of  ejectment).  The  other  side  of  the  "Gewere" 
was  that,  as  regards  land,  it  had  to  materialise  in  the  shape  of 
actual  exploitation  the  taking  of  "esplees"  (as  the  Anglo-French 
lawyers  used  to  say) ;  "  Gewere  "  was  necessarily  a  holding  for  use 
and  profit  ("Not  und  Geld").  This  meant,  on  one  hand,  that 
abstract  rights  could  not  form  the  basis  of  the  "Gewere",  on  the 
other,  that  the  various  forms  of  exploitation  of  one  and  the  same 
plot  gave  rise  to  different  forms  of  "  Gewere  ",  corresponding  to  the 
various  titles  connected  with  it.  There  is  disagreement  on  this 
point  between  our  German  authorities.  Huebner  formulates  con- 
clusions opposite  to  those  adopted  by  Heusler.^  But  there  can 
be  no  doubt  that,  although  in  case  of  litigation  some  forms  of 
"Gewere"  had  to  recede  into  the  background  and  other  forms  to 
sustain  the  brunt  of  the  legal  struggle,  there  w^as  a  kind  of  ladder 

1  E.g.  Heusler,  "  Institutionen  desdeutschenPrivatrechts",  11,  9, 14,  21. 

2  Ibid.,  25. 

xxxvii 


INTRODUCTION   TO    THIS    VOLUME 

of  estates  in  land,  li'iNing"  rise  to  partieular  forms  of  "Gewere", 
—  "letligliche",  "hebbemle",  "eigentliehe",  ete.  This  was  the 
conseqiieiiee  of  the  feiuhil  splitting  up  of  the  soliil  notion  of 
proi)erty.  "Dominium  utile"  and  "dominium  direetum",  the 
right  of  the  lord  and  the  right  of  the  vassal,  the  right  of  the 
Church,  of  rent -paying  tenants,  of  reversioners,  and  of  persons 
endowed  by  curtesy  or  dower  —  all  these  various  estates  had  their 
reflection  in  special  kinds  of  "Gewere."  ^ 

These  features  present  a  treatment  of  real  property  entirely 
different  from  that  of  the  Roman  books.  Such  a  treatment  was 
bound  to  come  into  conflict  with  the  Romanesque  doctrines  of 
the  "Common  Roman  Law"  ("  Gemeines  romisches  Recht  ")  and 
of  the  first  draft  of  the  Civil  Code.  This  conflict  did  take  place, 
and  the  law  of  the  revised  Code  was  framed  ^'e^y  much  on  the 
lines  suggested  by  Ihering  and  by  the  Germanists. 

Have  these  modifications  to  be  traced  primarily  to  national 
peculiarities?  What  foundation  is  there  for  the  oft  repeated 
contention  that  the  modern  law  of  possession,  as  formulated  in 
the  Civil  Code  of  Germany,  has  been  inspired  by  the  peculiar 
juridical  conceptions  of  Germanic  notions?  Gierke  lays  stress 
on  the  opposition  of  the  Germanic  people  against  the  notions  of 
absolute  individualistic  ownership  proclaimed  and  developed  in 
Roman  law.  Undoubtedly  the  "  Biirgerliches  Gesetzbuch"  has 
carried  out  certain  mitigations  in  this  respect ;  a  clause  against 
"Chikane",  or  malicious  use  of  property  rights  with  the  object 
of  inflicting  harm  on  others,  was  introduced  into  the  Code  after 
a  lively  struggle;  rights  of  expropriation  by  the  State  were  ex- 
tended and  defined  in  a  way  which  does  not  conform  with  well- 
known  applications  of  individualistic  ownership.  But  yet,  in 
the  judgment  of  Socialistic  writers  like  ]\Ienger,  the  German  Code 
has  remained  true  on  the  whole  to  the  basis  of  individualism  ;  and 
there  can  be  no  talk  of  a  radical  change  of  attitude  in  this  respect. 
Huebner  (following  Herbert  Mayer)  sees  the  traditional  element 
in  the  publicity  required  by  German  law  in  order  to  establish  a 
title  —  an  idea  which  in  his  view  connects  the  medieval  period 
with  the  modern ;  for  in  medieval  times  the  creation  or  transfer 
of  rights  to  land  was  effected  in  a  popular  assembly  (e.g.  in  the 
important  case  of  surrender  or  "Auflassung")  or  under  conditions 
of  private  disposal  which  gave  the  transaction   notoriety   (e.g. 

1  HpusUt  himsf'lf  mentions  the  ease  where  the  vassal  had  to  sustain 
his  "Gewere"  against  the  lord  in  spite  of  the  fact  that  the  "ledigliche 
Gewere"  belonged  to  a  tenant  of  his. 

xxxviii 


INTRODUCTION    TO    THIS    VOLUME 

the  "sessio  triduana",  the  procedure  by  a  salman,  etc.)-  The 
modern  device  corresponding  to  these  antiquated  forms  and 
ensuring  the  same  effects  is  found  in  the  registration  of  title  in 
the  "Grundbuch."  The  connection  seems,  however,  far  from 
clear,  and  the  analogy  of  legal  consequences  as  to  title  is  really 
produced  by  very  different  factors.  Registration  is  a  method 
essentially  derived  from  settled  conditions  under  a  strong  politi- 
cal rule.  To  some  extent  it  may  arise  even  in  early  times,  as  we 
may  gather  from  the  example  of  Domesday  Book  with  its  regis- 
tration of  tenants  "tempore  regis  Willelmi"  and  "tempore  regis 
Edwardi";  but  in  such  cases  the  method  is  applied  only  in  a 
rudimentary  way,  and  is  resorted  to  under  pressure  from  the 
strong  hand  of  a  William  the  Conqueror.  The  transactions  in 
open  court  or  in  surroundings  ensuring  publicity  belong  to  an 
entirely  different  mode  of  social  life ;  though  interesting  and 
characteristic  in  themselves,  they  do  not  concern  either  the  tradi- 
tional unity  of  Germanic  juridical  thought  or  the  particular 
features  of  a  theory  of  possession.  It  is  difficult  to  escape  the 
conclusion  that,  in  striving  to  trace  continuous  lines  of  national 
development,  German  writers  have  been  sometimes  guilty  of  an 
uncritical  confusion  between  the  effects  of  national  psychology 
and  the  results  produced  by  the  requirements  of  consecutive 
periods  or  of  racial  elements  working  for  similar  aims. 

The  rashness  of  wide-reaching  national  claims  becomes  espe- 
cially apparent  when  we  shift  our  ground  from  Germany  proper 
to  States  in  which  German  invaders  as  immigrants  have  played 
only  a  restricted  part.  Take,  for  instance,  the  parallels  which 
may  be  traced  between  the  doctrine  of  the  "Gewere"  and  that  of 
Seisin  in  French  and  in  English  law.  Let  us  dwell  on  the  latter, 
as  it  has  been  discussed  by  many  leading  writers,  and  a  kind  of 
general  impression  has  been  formed  as  to  the  fundamental  identity 
of  methods  of  treating  possession  in  German  and  in  English  law. 

This  supposed  identity  does  not  go  very  deep,  however,  when' 
we  examine  the  facts  somewhat  closely.  It  is  true  that  the  Ger- 
manistic  guarantee  system  ^  and  the  Anglo-French  Seisin  ("  sitting 
in")  system  are  both  derived  from  the  medieval  notion  of  "in- 
vestitura"  —  the  "  clothing"  of  a  right.  But  the  two  conceptions, 
though  starting  from  the  "sensualism"  (Huebner)  of  ancient  legal 
lore  from  its  requirement  of  visible  and  tangible  formality,  de- 
^'eloped,  one  may  say,  into  entirely  opposite  distinctions.     While 

'  "Gewere"  means,  literally  "guarantee",  and  might  be  rendered  ia 
modern  German  by  "Gewalu*schaft." 

xxxix 


INTRODUCTION    TO    THIS    VOLUME 

in  England  tlie  stress  was  laid  on  possessory  remedies  and  the 
contention  as  to  title  was  ruled  ont  from  the  speeifie  procedure  as 
to  seisin,  on  the  other  hand  in  Germany  "Gewere"  was  treated 
as  a  presumption  of  title,  the  possessory  remedies  remained  nn- 
developetl,  and  the  whole  procedure  was  directed  to  i)repare  a 
decision  as  to  title.  The  influence  of  that  fundamental  contrast 
may  be  traced  in  regard  to  all  the  principal  incidents  of  the  doc- 
trine. While  in  Enjjjland  the  <lisseisor  was  protected  against 
everyone  but  the  rightful  owner  by  the  very  fact  of  his  possession, 
he  had  to  disclose  his  title  in  Germanic  procedure.  At  common 
law  in  England  the  owner  himself  was  not  allowed  originally  to 
make  good  his  better  right  by  the  help  of  possessory  remedies ; 
if  he  had  been  guilty  of  technical  negligence  or  had  to  face  the  heir 
of  the  disseisor  or  a  purchaser  from  the  latter,'  possession  of  the 
disseisor  was  originally  maintained. 

Again,  the  Anglo-French  seisin  stands  in  "loneliness"  with  its 
theory  that  there  can  be  only  one  person  actually  seised  of  a  thing. 
Lawyers  had  to  choose  whether  they  would  attribute  it  to  the 
bailor  or  to  the  bailee,  and  they  came  gradually  to  favour  the 
latter.  Thus  a  clear  difference  is  established,  both  as  against 
Roman  law  which  favours  the  owner  and  Germanic  law  which 
admits  of  several  "Gewere."  The  variety  of  "estates"  admitted 
by  English  law  belongs  to  another  plane  of  legal  relations  —  it 
has  nothing  to  do  with  possession  and  is  based  on  differences  of 
right.-  One  may  add  that  there  was  a  germ  of  the  notion  of  con- 
current seisins  in  the  opposition  between  holdings  "in  dominio" 
and  "in  servicio",  but  this  germ  was  not  developed  in  practice. 
As  for  the  relation  to  seisin  of  rights  to  land  derived  from  feoff- 
ments, it  did  not  follow  any  clear  theoretical  principle,  but  was 
evolved  in  the  course  of  a  rather  intricate  development  through  the 
practice  of  the  courts.^ 

Altogether  the  intricacies  of  the  law  of  possession  cannot  be 
'unravelled  by  the  comparatively  simple  expedient  of  contrasting 
national  traditions  and  tendencies.  It  is  evident,  for  example, 
tiiat  both  in  Roman  and  in  English  law  the  principle  of  a  strong 
government,  resolved  to  suppress  self-help  and  lawlessness,  as- 
serted itself  by  creating  and  developing  systems  of  possessory 
remedies  in  the  interdicts  in  one  case  and  the  assizes  in  the  other. 

1  Maiiland,  "Tho  Beatitudo  of  .Snisin",  Toll.  Papors.  I,  41.^)  ff. 
*  Pollock  and  MnitUmd,    "History  of  English  J>a\v",  11,  104. 
^Pollock  aud    WriglU,   "Posst-ssion",   47;   MaUluud,   Coll.    Papers,   I, 
369  ff. 

xl 


INTRODUCTION   TO    THIS    VOLUME 

On  the  other  hand,  the  history  of  German  peoples  did  not  leave 
much  scope  for  such  a  decided  preference  for  the  principle  of 
outward  control  over  things.  The  popular  and  collegiate  courts 
kept  up  a  reverence  for  title  and  recognised  it  even  when  not 
embodied  in  actual  control.^  These  traits  are  conditioned  by 
changing  states  of  society.  If  on  one  hand,  Roman  law  kept  up 
a  very  exacting  theory  of  ownership,  which  balanced,  as  it  were, 
its  energetic  protection  of  possession,  English  law  gradually  got 
rid  of  its  assize  (or  possessory)  remedies  in  favour  of  a  more  pliable 
system  derived  in  a  curious  way  from  a  combination  between 
petitory  (or  title)  remedies  limited  by  exceptions  (writs  of  entry) 
and  special  rules  for  regulating  relations  between  landlords  and 
tenants  ("ejectio  firmae  ",  forcible  entry). 

It  is  natural  that  there  is  bound  to  be  in  all  systems  a  com- 
bination of  absolute  and  relative  appropriation ;  of  rights  rooted 
in  title  and  of  occupation  gradually  strengthened  by  lapse  of 
time ;  of  legal  security  and  of  substantive  justice.  The  manner 
in  which  different  systems  of  law  balance  and  combine  these  ele- 
ments may  be  conditioned  to  a  limited  extent  by  national  tradition 
and  psychological  peculiarities,  but  it  has  mainly  to  be  traced  to 
inferences  of  juridical  logic  and  to  more  or  less  successful  attempts 
to  satisfy  social  nepds.  Thus  we  are  forcibly  brought  back  to 
Ihering's  view,  that  the  course  of  legal  evolution  depends  not  so 
much  on  descent,  as  on  adaptation  to  circumstances. 

I  may  add  that  it  is  not  only  by  studying  the  intricate  theory 
of  possession  that  we  are  led  to  this  conclusion :  on  all  the  occa- 
sions when  legal  principles  have  been  claimed  as  peculiar  to  Ger- 
manic psychology,  similar  considerations  may  be  urged. 

1  Mark  the  bold  fiction  of  continuous  "  Gewere"  bridging  over  tortiously 
interrupted  possession. 


xli 


INTRODUCTION  TO  THIS  VOLUME 
By  William  Emanuel  Walz  ^ 

The  development  of  humanity  through  the  law  is  dominated 
by  two  powerful  currents  of  thought,  —  Particularism  (in  our  day 
perhaps  better  called  nationalism)  and  Universalism.  The  one 
aims  at  strengthening  particular  nations  through  the  municipal 
law.  The  other,  Universalism,  tries  to  win  over  nationalism  it- 
self, now  plainly  indicated  as  the  coming  victor  in  its  struggle 
with  individualism,  to  still  wider  conceptions  of  political,  economic 
and  racial  unity.  These  wider  conceptions  are  to  be  realized 
through  confederations  and  federations,  through  alliances  and 
understandings,  with  a  final  though  still  unacknowledged  view  to  a 
world  unity.  That  unity,  it  is  hoped,  can  be  made  acceptable 
through  the  administration  of  a  law  wisely  regardful  of  the  true 
interests  of  individual  nations,  —  a  law  more  really  international 
than  now  because  made  truly  universal  in  its  obligations  and  in 
its  sanctions. 

Municipal  law  dealing  with  private  and  public  interests  has 
been,  is,  and  will  continue  to  be  the  great  field  of  struggle  between 
individualism  and  nationalism,  with  national  sovereignty  ex- 
pressed through  laws  and  constitutions  as  the  final  arbiter  in  all 
disputes  and  contentions  among  citizens.  International  law  is 
attempting  to  gain  a  like  sphere  for  the  exercise  of  its  authority. 
It  looks,  for  its  place  in  the  sun,  to  the  good  will  of  the  large  and 
small  nations  of  the  world.  Municipal  law  compels  individual 
men  to  yield  to  the  nation  their  apparent  and  often  their  real 
rights,  while  international  law  asks  individual  nations  to  surrender 
their  undoubted  as  well  as  their  doubtful  rights  to  the  needs  and 
convenience  of  humanity  itself.  Through  popular  sovereignty, 
once  known  in  the  United  States  as  squatter-sovereignty,  through 
state  and  national  sovereignty,  as  well  as  through  what  German 

^  Dean  of  tlie  College  of  Law,  University  of  Maine, 
xliii 


INTRODUCTION   TO    THIS   VOLUME 

writers  have  called  social  sovereignty,  it  seeks  to  arrive  at  that 
universal  sovereignty  backed  by  international  public  opinion  and 
by  international  public  force  without  which  it  is  comparatively 
helpless,  —  a  stumbling  block  to  great  and  small  nations  alike. 

This  great  ideal  of  international  law  is  not  to  be  realized  within 
a  century  or  two ;  but,  even  so,  success  is  possible  only  by  study- 
ing and  following  the  lessons  taught  by  nationalism  in  its  luiending 
but  hitherto  victorious  struggle  with  individualism.  Within  its 
own  limits  nationalism  has  achieved  the  very  ideals  of  inter- 
national law :  it  has  secured  freedom  of  trade,  a  common  citizen- 
ship, general  education,  social  insurance  legislation,  and  universal 
military  service,  —  achievements  of  surpassing  value,  but  all 
impossible  without  a  previous  corresponding  conquest  of  indi- 
vidualism, and  still  incomplete  without  being  universalized,  that 
is,  made  subservient  to  the  interests,  not  of  particular  men  and 
nations,  but  to  the  true  welfare  of  all  nations  and  of  all  races  of 
men.  And  yet,  moving  within  strictly  national  lines  and  with- 
out intending  it,  the  great  Latin  and  Germanic  nations  have  more 
or  less  unconsciously  brought  one  to  the  other  whatever  blessings 
go  with  free  trade  within  national  boundaries,  with  a  common 
citizenship,  with  general  education,  with  social  insurance  laws, 
with  universal  military  service.  This  unconscious  tendency  of 
the  times  should  be  made  the  conscious  purpose  of  all  men. 

In  the  pursuit  of  this  great  world  purjiose,  what  is  pro])ounded 
to  every  citizen,  lawyer  and  statesman  is  the  fundamental  ques- 
tion :  How  did  nationalism  through  municipal  law  succeed  in 
making  the  individual  subservient  to  its  greater  purposes,  so 
subservient  in  fact  that  a  man's  property  and  even  a  man's  life 
appear  to  himself  as  nothing  compared  with  the  great  interests 
of  the  State  and  nation  to  which  he  belongs  ? 

It  is  perhaps  not  possible  to  say  an^lhing  better  of  this  re- 
markable book,  to  w^hich  these  few  and  inadequate  lines  serve  as 
an  introduction,  than  that  this  great  question,  which  the  s])hinx 
of  philosophy  has  placed  before  man,  is  answered  in  Professor 
Huebner's  "  History  of  Germanic  Private  Law  "  more  fully  than  in 
any  other  history  of  the  law  that  we  have  seen.  It  is  answered, 
not  in  so  many  words,  but  by  the  whole  spirit  and  scope  of  the  work, 
and  not  to  the  superficial  reader,  l)ut  to  the  open  mind  that  thought- 
fully inrjuires  into  the  causes  and  reasons  of  national  develop- 
ment as  directed  by  law  and  legislation.  The  last  stage  of  world 
development,  the  universalizing,  socializing  and  humanizing  of 
individual  nations  through  the  law  of  all  lands,  the  universal  law, 

xliv 


INTRODUCTION    TO   THIS   VOLUME 

cannot  intelligently  be  grasped  without  understanding  the  process 
of  the  nationalizing  of  the  individual  through  the  law  of  the  land. 
An  extremely  able  study  of  this  process  is  offered  in  the  present 
"  History  of  Germanic  Private  Law  ",  a  work  now  made  accessible 
to  the  Anglo-American  public  in  a  remarkably  accurate  and  ex- 
cellent translation. 

A  more  individualistic  law  than  the  primitive  Germanic  private 
law  could  not  well  have  been  found  an^^vhere  in  the  civilized 
world.  The  law^  itself  in  its  beginning  was  determined  by  per- 
sonal and  individual  ties  more  or  less  voluntarily  assumed,  not 
by  the  territorial  bounds  of  a  necessary  and  natural  mutual  de- 
pendence. Necessity,  however,  soon  modified  or  changed  what 
the  individual  would  gladly  have  preserved.  With  the  expansion 
of  the  Germanic  tribes,  coerced  by  pressure  from  within  and  with- 
out, and  with  the  consequent  conquest  by  them  of  Europe  from 
the  Straits  of  Gibraltar  to  the  Baltic  Ocean,  this  personal  law  was 
gradually  supplanted  by  the  territorial  law.  With  comparative 
peace  and  prosperity,  individualism  asserted  itself  through  legal 
decentralization.  Soon  there  arose  written  and  unwritten  laws 
for  the  inhabitants  of  cities,  for  nobles,  priests,  merchants,  ar- 
tisans and  public  officials,  and  laws  for  men  engaged  in  mining 
or  in  building  and  inspecting  dykes.  Local  liberty,  then  as  now 
the  strongest  feature  of  public  life,  found  its  fullest  scope  in  the 
customs  and  laws  of  associational  groups  ("genossenschaftliche 
Verbiinde")  ...  a  development  crow^ned  by  Prince  Bismarck, 
that  past  master  in  the  art  of  nation-building,  by  his  utilizing 
them  under  the  name  of  trade  associations  as  the  main  pillars  of 
his  wonderful  national  system  of  accident,  sickness,  and  old  age 
insurance.  Few  men  have  studied  the  history  of  the  law  to  better 
purpose  than  this  wizard  in  the  art  of  uniting  the  body  and  the 
soul,  the  form  and  the  spirit  of  institutions,  and  thus  endowing 
them  with  a  life  all  their  own  and  independent  altogether  of  the 
life  and  will  of  the  artist  himself. 

Indi\'idualism,  from  choice  but  more  often  from  necessity, 
worked  its  way  to  particularism  and  gradually  to  nationalism  in 
legal  forms  the  most  various :  through  custom  and  habit,  through 
usage  and  tradition,  through  right,  good,  ancient  practice,  for  all 
of  which  Germanic  ])rivate  law  had  its  appropriate  technical 
terms.  Where  these  did  not  result  in  positive  law,  they  produced 
that  vast  and  most  useful  by-product  of  the  Germanic  law  known 
as  "Sittlichkeit  ",  —  a  mass  of  ideal  conceptions  of  the  legal  mind 
and  of  daily  manifestations  of  refined  business  and  social  life  and 

xlv 


INTRODUCTION  TO   THIS   VOLUME    " 

of  political  and  ])iiblic'  good  form,  not  yet  ready  to  be  embodied 
into  actual  law  but  desperately  striving  for  the  authority  that 
comes  from  public  recognition  enforced  by  statutory  enactment. 
The  wonderful  possibilities  of  which  this  by-product  of  the  law  is 
capable  were  duly  emphasized  by  Lord  Ilaldane  in  his  epoch- 
making  address  before  the  American  Bar  Association  at  Montreal 
in  1913,  — possibilities  that  contain  the  promise  and  the  potency 
of  a  new  world  organization  along  lines  that  correspond  more 
fully  than  now  not  only  to  the  material,  political  and  commercial, 
but  also  to  the  legal,  ethical  and  spiritual  constitution  of  the 
universe. 

The  strength  and  popularity  of  Germanic  pri\'ate  law  lay  in 
the  fact  that  it  established  legal  relations,  not  in  the  abstract 
but  in  the  concrete.  Delivering  twig  or  clod,  turf  or  sod,  hat 
and  glove,  touching  the  altar  cloth  or  the  bell  rope,  then  the 
putting  out  of  the  hearth  fire  by  the  old  owner  and  the  lighting 
it  anew  by  the  incoming  proprietor,  the  "perambulatio"  or  the 
common  walking  of  the  boundaries,  and  finally  the  "exitus"  as 
proof  of  release  of  all  claims  to  the  land  by  the  former  owner ;  the 
placing  by  the  widow  of  her  house  key  or  her  mantle  upon  the 
bier  or  grave  of  her  husband  to  free  herself  from  liability  for 
debts;  the  hand-clasp  before  witnesses  to  make  binding  some 
feudal,  commercial  or  even  social  relationship ;  the  mounting  on 
horse-back  from  a  stone  fifteen  inches  high  in  proof  of  testamentary 
and  military  capacity  (a  strange  and  yet  not  really  unreasonable 
test,  even  in  relatively  recent  times  appealed  to,  though  not 
actually  gone  through  as  custom  once  demanded,  by  General 
Winfield  Scott  and  Field  INIarshal  Count  A'on  iNIoltke  when  they 
insisted  on  the  acceptance  of  their  resignations  and  when  each 
offered  to  prove  by  his  inability  to  mount  his  horse  the  positiA'e 
and  irrevocable  end  of  his  active  military  career)  ...  all  these 
customs  brought  the  good  old  law  home  to  the  minds  and  hearts 
of  the  people,  to  men  and  women,  to  old  and  young,  standing  by 
and  seeing  the  law  of  the  land  visibly  embodying  and  renewing 
itself  in  every  transaction  of  life.  To  become  truly  strong  and 
popular,  international  law,  like  the  old  law,  must  manifest  these 
dramatic  qualities  of  its  predecessor  in  a  far  higher  degree  than  it 
does  to-day.     It,  also,  must  appeal  to  the  imagination  of  mankind. 

The  doctrine  of  seisin  (a  word  derived  from  the  Old  German 
"saz-jan  ",  German  "setzen",  French  "saisir"),  and  the  pul)licity 
connected  with  it,  so  graphically  described  by  Professor  IIuel)ner, 
was  built  up,  not  on  an  abstract  conception  of  ownership,  but 

xlvi 


INTRODUCTION   TO    THIS    VOLUME 

upon  the  actual,  external,  visible  element  of  physical  control, 
publicly  surrendered  by  the  owner  and  as  publicly  assumed  by 
the  purchaser.  This  aspect  of  the  law  is  treated  with  great 
lucidity  and  in  all  its  aspects,  —  proprietary,  corporeal,  incor- 
poreal, feudal,  rental,  judicial  and  pledge  seisin,  as  well  as  seisin 
by  the  collective  hand,  similar  to  the  being  seized  "per  my  et 
per  tout"  of  the  Anglo-Xorman  law.  Equally  interesting  is  the 
author's  account  of  the  legitimizing  power  of  an  apparent  right, 
such  as  that  of  a  record  title  or  of  color  of  title  in  general,  both  of 
them  rights  based  on  the  great  principle  of  publicity.  Our  Ameri- 
can law  has  built  well  upon  this  ancient  foundation,  going  in  this 
respect,  paradoxically  enough,  in  advance  of  the  English  law  by 
falling  back,  consciously  or  unconsciously,  upon  the  ancient 
principles  of  a  still  remoter  past. 

The  individualism  that  marked  the  Germanic  law  in  its  earlier 
days,  prevented  a  strict  separation  of  the  public  from  the  private 
law,  because  the  relation  of  the  State  to  the  folk-men  was  treated 
from  the  standpoint  of  common  and  almost  equal  rights  rather 
than  from  that  of  a  superior  giving  commands  to  an  inferior. 
This  distinction  did  not  begin  to  make  itself  really  felt  until  more 
modern  theories  of  the  State  had  established  themselves  through 
the  Hohenstaufen  Kaisers  in  Italy,  through  the  influence  of  the 
Roman  and  Canon  law  in  the  territorial  courts  and  in  the  law 
faculties  of  the  universities,  and  last,  not  least,  through  the  power- 
ful and  persuasive  example  given  to  Europe  by  both  France  and 
Prussia.  That  the  Germanic  rulers,  kings  when  elected  at  first  by 
the  people  and  then  by  the  electoral  college,  kaisers  when  crowned 
by  the  pope  in  Rome,  were  by  this  popular  and  divine  authority 
considered  in  some  way  successors  to  the  ancient  Csesars  and 
recognized  as  such  by  the  Christian  world  and  its  great  spiritual 
spokesmen  such  as  Dante ;  that  the  Roman  law  was  taught  in  all 
the  universities  of  Europe ;  that  in  the  administration  of  justice 
university  trained  officials  gradually  replaced  unschooled  laymen 
from  the  people ;  that  the  German  law  had  with  every  century 
become  less  of  a  unit  and  more  of  an  incoherent  mass  of  territorial 
usages,  customs  and  laws  ;  that  it  was  not  (outside  of  a  few  cities) 
scientifically  cultivated  anywhere ;  that  there  was  no  powerful 
central  monarchy  with  a  "  curia  regis  "  as  in  England,  and  no  radical 
legislative  activity  to  correct  defects  .  .  .  these  were  the  chief 
reasons  why  the  Reception  came  and  conquered,  spreading 
throughout  the  lengtli  and  breadth  of  the  land,  with  the  excep- 
tion only  of  Hamburg,  Liibcck,  Switzerland,  and  Schleswig,  to 

xlvii 


INTRODUCTION    TO    THIS   VOLUME 

which  hinds  the  jurisdiction  of  the  Imperial  Chamber  of  Justice 
had  never  extended. 

In  the  last  analysis  the  extreme  individualism  of  the  race  was 
the  real  cause  of  the  Reception,  and  a  foreij:;n  law  thus  became  the 
common  law  of  the  land.  This  individualism  had  in  course  of 
time  developcnl  a  maxim  remarkable  in  itself  and  only  too  well 
observed  in  i)ractice  :  an  agreement  between  the  parties  "breaks" 
the  town  law,  town  law  "breaks"  provincial  law,  and  provincial 
law  "breaks"  the  common  law.  Weak  though  the  common  law 
thus  was,  it  was  even  so  the  only  legal  force  that  in  the  later 
INIiddle  Ages  united  the  people  in  a  certain  loose  communit\'  of 
law.  This  anarchic  individualism  was  broken  by  the  growth  of 
the  power  of  the  territorial  i)rinces,  especially  those  of  Austria, 
Prussia,  Bavaria,  and  Saxony ;  and  these  in  turn  abolished  the 
binding  force  of  the  common  law  and  established,  each  in  his  own 
territory,  a  wholly  independent  legal  province  or  State.  Thus 
this  great  evil  began  to  work  out  its  own  cure  by  a  slow  and  painful 
process,  that  led,  as  in  the  United  States,  to  a  civil  war,  giving  the 
final  victory  to  the  North  as  against  the  South,  and  to  nationalism 
as  against  the  adherents  of  individualism,  particularism  and 
State  rights.  With  the  defeat  of  Austria  by  Prussia,  with  the 
foimdation  of  a  new  federation,  and,  thirty  years  afterward,  with 
the  enactment  of  the  German  Civil  Code  providing  for  a  cen- 
tralized administration  of  justice  by  a  Sui)reme  Court  sitting,  not 
at  Berlin  as  Kaiser  and  Chancellor  had  strenuously  desired,  but 
at  Leipzig  in  Saxony  as  a  particularistic  Reichstag  had  voted, 
German  federal  law  has  now  in  name  and  in  fact  become  the  law 
of  the  land  and  practically  "l)reaks"  all  State  and  territorial 
laws.  Thus  nationalism  has  won  a  complete  victory  over  a  narrow 
particularism  that  had  been  responsible  for  the  existence  of  more 
than  one  hundred  and  twenty  dilferent  regions  of  special  and  inde- 
pendent law  in  an  empire  considerably  smaller  than  the  state  of 
Texas.  At  last,  through  the  efforts  of  Prince  Bismarck,  the  work 
of  the  legal  profession,  and  the  will  of  the  pe()j)le,  a  common  civil 
code  prevails  throughout  the  length  and  breadth  of  tlu>  land, 
ranking  in  excellence  with  Na])ole()n's  Code  Civil,  generally  and 
justly  designated  as  the  most  Germanic  of  the  older  codes.  Para- 
doxical as  it  may  sound.  Napoleon  and  Bismarck  were  the  great 
political  founders  of  (jcrman  unity;  and,  consciously  and  un- 
consciously, their  entire  life  work,  esj)ecialiy  that  of  Napoleon, 
has  tended  to  the  subjection  of  German  individualism  to  the 
nationalism  of  to-day. 

xlviii 


INTRODUCTION   TO    THIS    VOLUME 

A  Europe,  more  or  less  united,  is  no  doubt  the  next  great  step 
in  the  world's  progress.  European  individualism,  chastened  and 
made  more  reasonable  in  the  severe  school  of  nationalism,  may  be 
ready,  sooner  than  we  think,  for  continentalism,  even  for  the  forma- 
tion of  a  United  States  of  Europe,  especially  if  a  Pan-America 
under  the  leadership  of  the  United  States  or  a  Pan-Asia  under 
Japanese  hegemony  should  promise  soon  to  become  realities. 
The  time  of  the  great  individualists,  beginning  with  Luther  and 
ending  with  Voltaire,  is  indeed  gone ;  but  what  might  be  called 
the  great  universalists  have  not  yet  arrived.  The  great  men  of 
the  present  century,  as  were  those  of  the  nineteenth,  will  be 
nationalists  from  conviction,  universalists  only  from  necessity, 
men  like  Bismarck  and  Darwin,  like  Wagner  and  Tolstoy,  like 
Nietzsche  and  Bergson,  —  men  that  realize  that  the  glory  of 
Europe  is  really  based  on  the  plurality  of  its  great  nations,  that 
each,  in  a  different  degree  and  by  different  methods  but  always 
in  harmony  with  its  own  nature,  is  offering  its  gifts  and  contri- 
butions to  an  ever  better  state  of  intellectual  freedom,  disciplined 
imagination,  political  liberty,  and  social  progress,  a  conviction 
that  regardless  of  wars  and  rumors  of  war  tends  to  become  more 
general  and  more  permanent  with  every  centur3^ 

The  three  great  currents  that  have  dominated  European  history 
and  law  dominate  it  still :  the  great  onward  sweep  of  the  restless, 
active,  searching,  scientific  spirit  still  represented  by  the  descend- 
ants of  the  Franks,  Saxons  and  Allemans,  by  France,  Great 
Britain,  and  Germany;  the  strong  and  enduring  forces  repre- 
sented by  the  spirit  of  ancient  Greece  and  Rome,  by  the  Roman 
Law,  the  Catholic  Church,  and  the  classic  arts ;  and,  last  not 
least,  the  great  social  movement  of  modern  times,  mediating 
between  the  old  and  the  new,  endeavoring  to  harmonize  through 
the  law,  and  wherever  possible  through  religion  also,  the  Teuton 
spirit  with  the  Roman,  the  North  with  the  South,  the  East  with 
the  West,  honor  with  conscience,  capital  with  labor,  the  one  with 
the  many,  the  individual  with  society,  tremendous  problems 
calling  for  the  Grand  Synthesis  of  nations  and  races  through  law 
and  religion,  a  movement  growing  and  developing  in  ever  widen- 
ing and  ever  higher  circles,  in  vast  spiral  lines,  tending  to  em- 
brace all  mankind  and  raising  it  to  nobler  and  more  spiritual 
planes  of  development.  The  soul  of  a  nation  is  like  a  prism  in 
which  the  rays  of  truth  break  in  a  specific  manner ;  but  all  united, 
and  only  when  united,  give  the  pure  white  truth,  the  perfect  law. 
This  new  and  perfect  truth  can  shine  out  brightly,  not  in  times  of 

xlix 


INTRODUCTION   TO    THIS    VOLUME 

stress  and  storm,  but  in  times  of  peace  and  quiet,  can  in  fact  be 
developed  only  in  eras  of  great  institutions  such  as  the  "Land- 
frieden",  the  King's  Peace,  the  "Constitutio  Pacis",  the  "Treuga 
Ilenrici",  or  else  of  institutions  greater  still  such  as  the  coming 
century  may  bring  to  bless  mankind,  "in  terra  pax  hominibus 
bonae  voluntatis",  a  peace  made  effective  through  a  law  that  is 
not  the  law  of  any  one  man  or  of  any  one  nation,  but  the  law  of 
all  men  and  of  all  nations,  and  therefore  the  very  law  of  God 
himself. 

To  have  contributed  to  this  grand  coming  consummation  is 
the  merit  of  our  author;  to  try  to  understand  his  work  is  the 
duty  of  the  reader. 


TRANSLATOR'S   NOTE 

The  present  volume  has  profited  by  the  learning  of  Professor 
Lorenzen  and  Professor  Wigmore,  but  its  preparation  has  been 
left  very  largely  to  the  translator's  own  judgment,  and  he  is  re- 
sponsible for  any  errors  it  may  contain.  Great  pains  have  been 
taken  to  make  the  translation  as  true  to  the  original  in  both  sense 
and  form  as  a  decent  regard  for  English  idiom  would  permit ;  to 
find  for  words  "of  art"  equivalents  that  carry  some  intelligibilit}' 
apart  from  technical  context  or  knowledge ;  and,  above  all,  to 
avoid  the  use  of  any  expressions  of  our  own  law  which,  though 
seemingly  bearers  of  light,  could  mislead  the  reader  into  assuming 
a  greater  similarity  between  the  institutes  of  the  two  legal  sys- 
tems than  actually  exists.  The  difficulties  of  the  task  will  be 
apparent  to  any  reader  of  the  volume ;  particularly  those  offered 
by  institutes  such  as  pledge,  land  charges,  rents,  and  seisin,  whose 
analysis  and  history  have  received  much  less  attention  in  our 
own  than  in  German  legal  literature,  and  whose  terminology  is 
correspondingly  richer  in  the  latter.  Not  every  institute  of 
foreign  law  of  wdiich  one  reads  can  be  fitted  into  our  own  technical 
nomenclature.  Indeed,  in  view  of  the  notorious  fact  that  one  of 
the  greatest  defects  of  our  law  is  its  careless  orismology,  no  apology 
should  be  necessary  for  any  honest  endeavor  to  escape  from  the 
English  and  American  practice  —  often  productive  of  grotesque 
results,  and  never  an  aid  to  clear  thinking  —  of  describing  foreign 
institutional  development  in  the  peculiar  terms  that  embody 
specifically  Anglo-Saxon  experience.  The  translator  has  never 
forgotten  that  he  was  dealing  with  an  account  of  Germanic  things, 
and  that  the  greatest  obstacle  in  a  reader's  way  is  the  difficulty 
of  getting  away  from  English  things  that  he  knows  too  well. 
Even  at  best,  one  is  forced  to  the  use  of  scores  of  words,  such  as 
"reversioner",  "dower",  "advowson  ",  "occupancy  ",  "chattels", 
and  so  on,  that  never  had  for  Germanic  law  the  precise  content 
which  they  bear  in  our  own  —  not  forgetting  that  their  meaning 
in  that  has  varied  at  different  times,  and  varies  to-day  from  State 
to  State. 

Save  in  a  few  cases,  it  has  not  been  necessary  to  resort  to  the 
aid  of  particularly  strange  expressions ;  and  in  the  few  excep- 

li 


TRANSLATOR  S    NOTE 

tional  cases  where  tliis  eoukl  not  be  avouled  the  expressions 
adopted  are  no  odder  than  are  scores  of  those  of  the  Scots  law 
with  which  American  and  Enj^Hsh  hiwyers  sliould  be  fairly  fa- 
miliar. To  take  an  example,  the  expression  "in  collective  hand" 
(tenure,  ownership,  or  alienation  "in"  or  "by"  collective  hand) 
will  be  unfamiliar  to  most  readers.  Even  Mr.  Maitland  once 
yielded  so  far  to  the  English  tradition  as  to  employ  "  joint  tenancy  " 
as  the  equivalent  of  the  German  "zu  gesamter  Hand",  although 
with  a  caution  as  to  the  differences  Ix'tween  them  (III  "  Collected 
Papers",  33G).  But  inasmuch  as  only  one  of  the  two  main  char- 
acteristics of  the  English  joint  interest  (true,  the  one  most  familiar 
to  lawyers  and  of  greatest  practical  importance  in  our  modern 
law)  belongs  to  interests  "zu  gesamter  Hand",  while  in  details 
there  are  great  diA'ersities,  the  translation  "joint"  is  certainly 
undesirable.  It  may  be  added  that  the  German  institute  has 
been  very  much  discussed  in  other  countries,  and  that  in  French 
legal  literature  it  is  the  custom  to  do  as  has  been  done  in  the 
present  volume;  that  is,  translate  it  literally  ("en  main  com- 
mune"; see,  for  example,  "Le  Code  Civil,  1804-1904,  Livre  du 
Centenaire",  Vol.  I,  pp.  357-379).  The  truth  is  that  the  history 
of  community  and  individual  ownership,  under  varying  circum- 
stances of  time  and  place,  is  recorded  in  primitive  and  modern 
legal  systems  in  an  extraordinary  variety  of  forms  of  collecti\'e 
interests,  for  whose  classification  and  description  our  own  alter- 
natives of  joint,  common,  or  several,  are  totally  inadequate.  The 
same  is  true  of  the  systems  of  succession  and  partition  associated 
with  such  collective  interests.  Think,  for  example,  of  attempt- 
ing to  bring  all  the  junior  rights  in  succession  that  occur  in  different 
parts  of  the  world  under  the  descriptive  cover  of  "borough  Eng- 
lish"! Such  translations,  far  from  being  examples  of  "good 
English",  are  merely  evidences  of  parochial  thinking. 

Finally,  w^ith  respect  to  the  title  of  the  volume  ("History  of 
Germanic  Private  Law"),  which  departs  somewhat  from  the 
original  ("Grundzuge  des  deutschen  Privatrechts"),  this  was 
deliberately  adopted  by  the  Editorial  Committee,  as  better 
suggesting  than  does  the  original  title  the  historical  treatment 
and  the  w'ide  range  of  comparative  references  to  various  bcxlies 
of  Germanic  law  which  in  fact  characterize  the  work,  and  which- 
constitute  much  of  its  value  for  students  of  our  own  law  ;  although 
it  may  be  added  that  throughout  the  body  of  the  text  the  greatest 
care  has  been  exercised  in  distinguishing  between  "Germanic" 
and  "German." 

lii 


LIST  OF  IIVIPORTANT  WORKS   CITED 

I.     SYSTEMATIC   TREATISES. 

A.  Written  from  an  older  standpoint. 

Eichhorn,    "Einleitung   in   das    deutsehe   Privatreeht"    (1823, 

5th  ed.  1845). 
Beseler,  "System  des  gemeinen  deutschen  Privatrechts "  (3  vols., 

1847,  1853,  1855;   4th  ed.  2  vols.  1885). 
Gerber,    "System"   ="Svstem    des    deutschen    Privatrechts" 

(1848,  1849;  16th  ed.  1891). 
Gengler,   "Das   deutsehe   Privatreeht  in   seinen    Grundziigen" 

(1854,  4th  ed.  1892). 
Stobbe,  "Handbueh  des  deutschen  Privatrechts"  (Vol.  1,  1871, 

3d  ed.,  by  K.  Schulz,  1893 ;  Vol.  2,  1875,  2d  ed.  1882 ;  Vol.  3, 

1878,  2d  ed.  1885 ;    Vol.  4,  1st  &  2d  ed.  1885 ;    Vol.  5,  1st  & 

2d  ed.  1885). 
V.  Roth,  "System  des  deutschen  Privatrechts"   (3  vols.,  1880, 

1881,  1886;  incomplete). 
Franken,  "Lehrbueli  des  deutschen  Privatrechts"  (1894). 
Behrend,  "  Ubersicht  iiber  das  deutsehe  Privatreeht  ",  in  Holtzen- 

dorff's,  "  Enzyklopadie  der  Rechtswissenschaft"   (Vol.  1,  5th 

ed.  1890,  565-609). 

B.  Written  in  the  light  of  the  Civil  Code  or  its  drafts. 

Gerber,  "System  des  deutschen  Privatrechts  auf  der  Grundlage 
des  Entwurfs  eines  BGB  fiir  das  deutsehe  Reich ",  revised 
by  Cosack  (17th  ed.  1895). 

Stobbe,  "Handbueh  des  deutschen  Privatrechts",  revised  by  H. 
O.  Lehmann  (Vol.  2,  Part  1,  3d  ed.  1896;  Vol.  2,  Part  2,  3d 
ed.  1897;   Vol.  3,  3d  ed.  1898;   Vol.  4,  3d  ed.  1900). 

H.  O.  Lehmann,  "Geschichte  und  Grundztige  des  (deutschen) 
Privatrechts",  in  Birkmeyer's  "Enzyklopadie  der  Rechts- 
wissenschaft" (1901,  290-353). 

Gierke,  "Privatreeht"  =  "Deutsehes  Privatreeht",  in  Binding's 
"Systematisches  Handbueh  der  deutschen  Rechtswissen- 
schaft" (Vol.  1,  "AUgemeiner  Teil  und  Personenrecht ", 
1895;  Vol.  2,  "Sachenrecht",  1905). 

Gierke  in  Holtzendorff-Kohler  =  "Grundztige  des  deutschen 
Privatrechts",  in  Holtzendorff-Kohler  s  "Enzyklopadie  der 
Rechtswissenschaft"  (6th  ed.,  Vol.  1,  1904,  431-559). 

II.    REPRINTS   OF   SELECTED   SOURCES. 

f?-a»A7/«,  "Geschichte  und  System  des  deutschen  Privatrechts, 
ein  Grumlriss  zu  Vorlesungen"  (1878,  2d  ed.  1882). 

Kraut,  "(xrundriss  zu  Vorlesungen  iiber  das  deutsehe  Privat- 
reeht" (1830;    (;th  ed.,  l)y  von  Frensdorff,  1886). 

Lorsc/i  and  Schroder,  "  Urkunden  zur  Geschichte  des  deutschen 
Privatrechts  fiir  den  Gebrauch  bei  Vorlesungen  und  Ubungen" 
(1874 ;  2d  ed.  1881 ;  3d  ed.,  revised  by  Schroder  and  L.  Perels, 
1912). 

liii 


LIST   OF    IMPORTANT   WORKS    CITED 

Sttttz  Ilonggcr,  "  Moiertroriehtsurtoilo  dos  lOn.  und  17n.  Jahr- 
hundorts  zuni  81'lbststiidiuni  und  fur  den  Cu>braueh  bei 
Ubuiigeu  erstmals  lierausgogebeu  uud  crliiutert "  (1912). 

III.  HISTORIES. 

HcHsJcr,  "  Institutionen "  =  "Institutionen  des  deutschen  F*ri- 
vatreohts",  constituting  Part  2  of  Vol.  2  of  Binding's  "Sys- 
tomatisfhos  Ilandbuch  der  deutschen  lleelitswissensehaft" 
(2  vols.,  1SS5,  188(3). 

V.  Amira,  "Hecht"  =  art.  "Recht"  in  Part  2  of  Vol.  2  of  PauVs 
"Griindriss  der  germanischen  Philologie"  (1893,35-200;  2d 
ed.  1897,  pp.  .")l-222;    also  published  separately). 

CI.  Frhr.  von  Schwerin',  "  Deutsche  Rechtsgesehichte  "  (Part  3  of 
Vol.  2  of  Meister:  "  Grundi'iss  der  Geschichtswissenschaft," 
1912). 

Hoops,   J.,    "  Reallexikon   der    germanischen    Altertumskunde, 

unter  Mit^\'irkung  zalilreichcr   FaeligcU-hrton  herausgrgebon 

von  —  "  (thus  far  2  parts,  1911,  1912)  ;  it  also  treats  in  many 

articles  of  the  history  of  the  Germanic  and  older  German  law. 

A.    Treatises  upon  Gernianic  legal  historij,  jxirtieularhj : 

Brunncr,  "(resehichte"  =  " Deutsclie  Rechtsgesehichte",  con- 
stituting Part  1  of  Vol.  II  of  Binding's  "  Systematisches  Hand- 
buch  der  deutschen  Rechtswissenschaft"  (Vol.  I,  1887,  2d 
ed.  190G;  Vol.  2,  1892). 

Brunner,  "Grundzuge"  =  "Grimdziige  der  deutschen  Rechts- 
gesehichte" (1901,  2d  ed.  1903;    oth  ed.  1912). 

Scfiroder,  "Lehrl)uch"  ="Lehrbuch  der  deutschen  Rechts- 
gesehichte" (1887,  5th  ed.  1907). 

Hedemann,  "  Die  .Fortschritte  des  Zivilrechts  im  19n.  Jahr- 
hundert.  Ein  tjberblick  ii.ber  die  Entfaltung  des  Privat- 
rechts  in  Deutsehland,  ()sterreich,  Franjcreich,  und  der 
Schweiz.  —  ler.  Band:  Die  Neuordnung  des  Verkehrslebens " 
(1910). 

IV.  TREATISES  ON  REGIONAL  GERMAN  LEGAL  SYSTEMS. 

A.    Systems  prevailing  within  the  limits  of  the  present  German  Empire. 
Dernhnrg,    "  Lehrbuch   des   preussischen   Privatrechts   und   der 

Privatrechtsnormen    des   Reichs"    (3    vols.,     1871;    5th   ed., 

Vol.  1,  1894,  Vol.  2,  1897,  Vol.  3,  4th  ed.  lS9(i). 
V.  Roth,  "Bayerisches  Zivilrecht"  (3  vols.,  1871;    Vol.  1,  2d  ed. 

1881,   Vol.  2,  2d  ed.   and  Vol.  3,  2d  ed.,  ed.  by  von  Becher, 

1897,  1898). 
Grutzmann,  "Handbueh  des  sachsischen  Privatrechts"  (2  vols., 

1887,  1889). 
K.  G.   Wdchter,  "nand])ueh    des   im    Konigreich  Wiirttemberg 

geltenden  Privatrechts"  (2  vols.,  1839,  1842;    unfinished). 
Boehlnu,  "Mecklenburgisclies  Jjandrecht"  (Vol.  1,  1871  ;  Vol.  2, 

Part  1,  1872,   Part  2,  1874;   Vol.  3.  Part  1,  1880;  unfinished). 
Roth  &  /'.  Meibom,  "  Kurhessisches  Privatreeht"  (Vol.  1,  1858; 

unfinished). 
Falck,  "Handbueh  des  Schleswig-IIolsteinischen  Privatrechts" 

(5  vols.,  182.")- 1848;    unfiiiislied). 
Dernhnrg.     Of  the  supplemental  volumes  to  Dernburg's  "  Dar- 

stellung  des  l)urgerlichen  Rechts  des  deutschen  Reichs  und 

Prcussens"   (6  vols..  Vols.  1  &  2  in  3d  ed. ;   Vol.  3,  4th  ed. ; 

Vol.  .5,  2d  ed.  —  all  edited  by  Kohler)  there  have  appeared  the 

following : 

Ocrtmann,  "Bayerisches  T.and(>spriva(recht"  (1903). 

Kisch,  "Elsass-Lothringisfiics  Laiulc.-privatrccht  "  (1905). 

Kloss,  "Siichsisches  Landesi)rivatreclit"  (1904,  2d  ed.  1908). 

Dorner  &  Seng,  "Badisches  Landesprivatrecht "  (1906). 

liv 


LIST    OF    IMPORTANT   WORKS    CITED 

V.  Buchha,  "  Landesprivatreeht  der  Grossherzogtiimer  IMeck- 

lenburg-Schwerin  und  Meeklenburg-Strelitz  "  (1905). 
Noldecke,  "Hamburgisehes  Landesprivatreeht"  (1907). 
Porzig,  Slrichling,    Unger   &  Bockel,   "Landesprivatreeht  der 
Thiiringisehen  Staaten"  (1908). 
Wolf,  "  Hessisehes  Landesprivatreeht"  (1910). 
Lange,    "  Landesprivatreeht    der  Fiirstentiimer    Waldeek    und 
Pyrmont"  (1910). 
B.    Systems  prevailing  outside  the  limits  of  the  -present  German  Empire. 
Unger,  "System  des  osterreiehisehen  allgemeinen  Privatrechts" 
(Vols.  1  and  2,  1856,   1859,  4th.  ed.    1876,  —  "AUgemeiner 
Teil;  VoL  6,  1864,  3d  ed.  1879,  —  "Erbreeht"). 
Finger    &    Frankl,    "Grundriss    des    osterreiehisehen    Reehts", 
including : 
Pfersche,  "Grundriss  der  allgemeinen  Lehi'en  des  biirgerliehen 

Reehts"  (1907,  2d  ed.  1911). 
Demelius,  "Sachenreeht"  (1900,  2d  ed.  1911). 
Schuster  von  BonJiot,  "Obligationem-oeht"  (1899). 
V.  A?iders,  " Familienreeht "  (1899,  2d  ed.  1911),  "Erbreeht" 
(1899,  2d  ed.  1911). 
Huber,    "Schw.    Privatrecht"   =  "Sj'stem  und  Gesehichte    des 

sehweizerischen  Privatrechts"  (4  vols.,  1886-1893). 
Erdmann,  "Svstem  des  Privatrechts  der  Ostseeprovinzen  Liv-, 

Esth-,  und  Kurland"  (2  vols.,  1S89,  1891;    unfinished). 
Tuor,   "  Das   neue    Reeht.     Einfiihrung   in  das   sehweizerische 
Zivilgesetzbueh  "  (1912). 

V.    HISTORIES  OF  RELATED  LEGAL  SYSTEMS. 

Viollet,  "Histoire  du  droit  civil  frangais"  (3d  ed.  1905). 
Brissaud,  "Manuel  d'histoire  du  droit  frangais"  (1898). 
Zachariae  von   Lingenthal,   "Handbuch   des   franzosischen   Pri- 
vatrechts" (2  vols.,  1808 ;   8th  ed.  in  4  vols.,  ed.  by  von  Crome, 

1894,  1895). 
Crome,  "AUgemeiner   Teil  der  modernen  franz5sischen  Privat- 

reehtswissenschaft "  (1892). 
Crome,    "Grundlehren    des    franzosischen    Obligationenreehts" 

(1894). 
Fertile,  "Storia  del  diritto   italiano"  (2d  ed.  in  7  vols.,  1892- 

1903). 
Nani,  "Storia  del  diritto  pHvato  italiano"  (1902). 
Schupfer,  "II  diritto  dei  popoli  germanici  eon  speeiale  riguardo 

all'  Italia"  (4  vols.,  1907,  1,  1909). 
Hinojosa,  "Historia  general   del   dereeho  espanol"   (thus  far  1 

vol.,  1887). 
Pollock  and  Maitland,  "The  Historv  of  English  Law  before  the 

Time  of  Edward  I"  (2  vols.,  1895,  2d  ed.  1898). 
Holmes,   O.    W.,   "  Das    gemeine    Recht    Englands   und   Nord- 

amerikas   (The   Common   Law)",   presented  in   11   lectures; 

translated  with  the  author's  consent  by  R.  Leonhard  (1912). 
"Select  essays"   =  " S.  E.  in  Anglo-American  Legal  History,  by 

various  authors.     Compiled  and  edited  by  a  Conunittee  of 

the  Association  of  American  Law  Schools"  (3  vols.,  1907-09). 
Kolderup-Roscnvinge,      "Grundriss      der     djinisehen      Reehts- 

geschichte",  translated  by  ITomeyer  (1825). 
K.  Maurer,  "Vorlesungen  iiber  altnordische  Reehtsgeschichte " 

(5  vols.,  1907,  1908,  1909,  1910). 
S.  J.  Fockema  Andreae,  "Het  oud-nederlandsch burgerlijk recht" 

(2  parts,  1906). 

VI.    PERIODICALS. 

"Zeilschrift  fiir  deutsehes  Recht  und  deutsche  Rechtswissen- 
schaft",  ed.  by  Reyscher,  Wilda,  Besseler,  Stobbe  (20  vols., 
1839-1861). 

•Iv 


LIST   OF    IMPORTANT   WORKS    CITED 

Z.  Ciosoh.  R.  W.  =  "Zeitschrift  fiir  geschichtliche  Reehtswissen- 

schaft ",  ed.  by  Savigny,  Eichhorn,  Goschcn  (15  vols.,  1815- 

1850). 
Z^  R.  G.   =  "Zeitschrift  fur  ReclitsKoschiehte",  od.  by  Rudorff, 

Bruns,  Roth,  Merkel,  Boldau  (13  vols.,  1801-187!)). 

Continued  bv : 
Z2.   R.   G.     =  "Zeitschrift    der    Savigny-Stiftunp,    fur    Rechts- 

geschiehte",  ed.  by  liekker,  Pcrnicc,  Mitteis,  Schroder,  Brinnier, 

Stutz    (1880-  ;    thus   far  32  vols,  in    the   Germanistische 

Alitoiluncfl. 

VII.     COLLECTION  OF  MONOGRAPHS  ON  GERMAN  LAW. 

Gierke's  "Untersuchungen"  =  Gierke,  ed.  "Untorsuchungen  zur 
deutschen  Staats  und  Rechtsgeschichte"  (1878-         ). 

Beyerle's  "Beitrilge"  =  Beyerle,  ed.  "  Deutschrechtliche  Bei- 
trage"  (1906-         ). 


Ivi 


ABBREVIATIONS   USED   IN   THE  FOOTNOTES 
OTHER   THAN   THOSE   ABOVE   INDICATED 

AHGB  =  HGB  =  (AUgemeines)  Handelsgesetzbueh. 

Akad.  Wiss.  Berl.   =  Abhandlungen  der  Akademie  der  Wissensehaften  zu 

Berlin. 
Allg.  L.  R.   =  AUgemeines  Landreeht  (of  Prussia). 
Allg.  5st.  G.  Z.   =  Allgemeine  osterreiehisehe  Geriehtszeitung. 
V.  Amira  "  Obligationenreeht "   =  Nordgermanisches  Obligationenrecht. 
Arch.  B.  R.   =  Arehiv  fiir  Biirgerliches  Recht. 
Arch.  Kult.  G.   =  Arehiv  fiir  Kulturgeschichte. 

Arch.  Soz.  W.  Soz.  Pol.   =  Arehiv  fiii-  Sozialwissenschaft  und  Sozialpolitik. 
Arch.  Urk.  F.   =  Arehiv  fiir  Urkundenforsehung. 
Arch.  off.  R.   =  Arehiv  fiir  5ffentliches  Recht. 
Arch,  zivil.  Praxis  =  Arehiv  fiir  zivilistisehe  Praxis. 
Arch.  R.  W.  Philos.   =  Arehiv  fiir  Reehts-  iind  Wirtschaftsphilosophie. 
Amer.  Hist..R.    =  American  Historical  Review. 
BGB   =  Biirgerliches  Gesetzbuch. 
Beit.  z.  Erlaut.  D.  R.   =  Beitrage  zur  Erlauterung  des  deutschen  Reehts, 

begriindet  von  Grruchot. 
V.  Below-Finke-Meinseke,  "Abhandlungen"    =  Abhandlungen  zur  mittle- 

ren  und  neueren  Geschichte,  herausgegeben  von  v.  B.,  F.,  und  M. 
Brandenburg's    "Abhandlungen"    =  Brandeuburg-Seeliger-Wileken,    edi- 
tors, Leipziger  historische  Abhandlungen. 
Brie  &  Fleischmann,  "Abhandlungen"   =  Abhandlungen  aus  dem  Staats- 

und  Verwaltungsrecht. 
Brentano  &  Lofz,  "Studien"    =  Miinchener  volkswirtsehaftliehe  Studien. 
Brunner,  "  Forschungen "   =  Forschungen  zur  Geschichte  des  deutschen 

und  franzosisehen  Reehts. 
Crome,  "Biirgerliches  Recht"   =  System  des  Biirgerlichen  Reehts. 
Dahn,    "Bausteine"    =  Felix    Dahn,    Bausteine ;        Gesammelte    kleine 

Schriften,  6  vols. 
Dernburg,  "Biirgerliches  Recht"    =  Das  Biirgerliche  Recht  des  deutschen 

Reichs  und  Preussens. 
Deut.  G.  Bl.   =  Deutsche  Geschichtsblatter. 
Deut.  Monatssch.  ges.  Leben  =  Deutsche  Monatsschrift  fiir  das  gesamte 

Leben  der  Gegenwart. 
Deut.  Litt.  Z.   =  Deutsche  Literaturzeitung. 
Deut.  Z.  Kirehenr.   =  Deutsche  Zeitschrift  fiir  Kirchenreeht. 
Delbriiek,  Preuss.  J.  B.    =  Preussische  Jahrbiicher. 
Dopseh,   "Forschungen"   =  Forschungen  zur  inneren  Geschichte  Oster- 

reichs,  ed.  by  Dopseh. 
EB   =  Schw.  ZGB,  EB  =  Schweizerisches  Zivilgesetzbuch,  Einfiihrungs- 

bestimmungen. 
EG  =  BGB,  EG   =  Einfiihrungsgesetz  zum  Biirgerlichen  Gesetzbuch. 
Ecker's  Zur.  Beitrilge  R.  W.   =  Eeker,  Hafter,  Hitzig,  M.  Huber,  editors: 

Ziiricher  Beitrage  zur  Rochtswissenschaft. 

Ivii 


ABBREVIATIONS    USED    IN    THE    FOOTNOTES 

Forseh.  Br.  Pr.  V>.   =  Forschungon  zur  Brandenburgischeii  und  Preussi- 

schen  Ciesehichte. 
Forseh.  D.  G.   =  Forschungen  zur  deutschen  Geschichte. 
Gmiir's  "  Abhandlimsron"   =  Gmiir,  ed.,  "Abhandlungen  zum  sehweize- 

riseluMi  Kocht." 
Gotting.  Ci.  Aiiz.   =  GiUtingenisehe  gelehrte  Anzeigen. 
J.   Grimm,    "  Rechtsalterlumor"   =  "Deutsche    Reehtsaltertumer "    (1st 

ed.  1828,  4th  (<d.  18*)9). 
Hans.  G.  R.   =  Ilausisehe  Gcsphiolits1)latter. 

Hoop's  "  Reallexikon  "   =  Reallexikon  d(>r  germanisehen  Altertumskunde. 
Hist.  Vj.  S.    =  Ilistorisehe  Vierteljabrschrift. 
Hist.  Z.    =  Hi.storisehe  Zeitsclirift. 

H.  W.  B.  der  Staatsw.   =  Ilandworterbucli  dor  Staatswissenschaften. 
Heymann,   "Arbeiten"   =  Arbeitcn  zum  Ilandels-,  Gewerbe-,  und  Land- 

vvirtschaftsrec'ht. 
Jenaer  Lit.  Z.   =  JiMiaer  Literaturzeitung. 
Fischer,  "  Abhandhmgen"   =  O.  Fischer,  ed.  :  Abhandlungen  zum  Privat- 

reeht  und  Zivilprozess  des  deutschen  Reiehes. 
V.    Inama-Sternegg,     "Wii'tschaftsgeschichte"   =  von     Inama-Sternegg, 

Deutsche  Wirtsehaftsgeschiclite,  2  vols. 
J.  B.  gem.  R.   =  Jahrbueh  d(>s  gemeinen  deutschen  Rechts,  I  (1857). 
Inter.  W.  Sch.   =  Internationale  Wochenschrift. 
Ihering's  J.  B.   =  Ilun-ing's  .Jalirbii(flier. 
Inst.  ost.  G.  F.   =  Mitteilungen  des  Instituts  fiir  osterreichische  Geschichts- 

forschung. 
J.  B.  fiir  Dogm.   =  Jahrbiicher  fiir  Dogmatik. 
K.   Bayer.  Akad.  Wiss.,   "Abhandhmgen"   =  Abhandhmgen  der  konig- 

Hchen   Bayrischcn  Akademie  der  Wissenschaften,   Philosophisch- 

pliilologisehe  und  historisclie  Klasse. 
K.   Preuss.   Akad.   Wiss.,   Sitz.   Ber.   =  Sitzungsberiehte  der  koniglichen 

preussischen  Akademie  der  Wissenschaften,   Philosophisch-histo- 

risf'lie  KLasse. 
K.  Gesell.  Wiss.  Gottingen,  "  Nachriehten  "  =  Naehrichten  der  konighclien 

Gesellschaft    der    Wissenschaften    zu    Gottingen,   Philosophisch- 

historische  Klasse. 
Krit.  Vj.  Cr.  R.  W.   =  Kritische  Vierteljahrssehrift  fiir  Gesetzgebung  und 

Rechtswissenschaft. 
K.  Siichs.  Gesell.  Wiss.,  "Berichte"   =  Berichte  iiber  die  Verhandlungen 

der  koniglichen    siichsischen    Gesellschaft    der    Wissenschaft    zu 

Leipzig,  Philologisch-historisfhe  Klasse. 
K.  Siichs.  Gesell.  Wiss.,  "  Abhandhingcn"  =  Abhandlungen  der  phil.-hist.- 

Klasse  der  kc'iniglich  siichsisclicn  Gesellschaft  der  Wissenschaft. 
Kohler,  "Gesammelte  Abhaiullungen"   (ISS.'i)    =  "(!esammelte  Abhand- 
lungen aus  dem  gemeinen  und  franziisischen  Civilrecht  "  (1883). 
Lands])erg,  "Geschichte";    see  Stiiilzing-ljandsberg. 
M.  G.  Cap.   =  Monumenta  Germaniae,  llistorica,  Capitularia. 
Meckb.  Z.  Rp.  R\v.   =  Mecklenburgische  Zeitschrift  fiir  Rechtspflege  und 

Rechtswissenschaft. 
Meister,    "  Miinsteri.sche    Beitriige"   =  Munsterische    Beitnige    zur    Ge- 

schichtsforschung. 
N.  Arch.   Gesel.   A.   dent.   G.   K.   =  Neues  Archiv  der  Gesellschaft  fiir 

jiltere  deiitsche  Geschichtskunde. 
O.  R.    =  Obligationenrecht. 
Pollock-Maitland,    "History"   =  Sir    F.    Pollock   and    F.    W.    Maitland, 

"The  History  of  English  Law  before  the  Time  of  Edward  I"  (2d 

ed.  1895). 
Schiickung's   "Arbeiten"   =  Schiickung,  ed.,  "Arbeiten  aus  dom  juristi- 

schf'n-staatswissenschaftlichen  Seminar  der  Universitiit  Marburg." 
Ssp.    =  Sacliscnspiegel. 
Swsp.    =  Schwabensi)iegel. 

S.  Ver.  Soz.  Pol.   =  Schriften  des  Vereins  fiir  Sozialpolitik. 
Schmoller's  J.  B.   =  Schmoller's  Jahrbueh  fiir  Gesetzgebung,  Verwaltung 

und  Volkswirtschaft. 

iviii 


ABBREVIATIONS    USED    IN   THE    FOOTNOTES 

Schmoller's  "  Forsehungen "   =  SchmoUer,  ed.,  Staats-  und  wissenschaft- 

liche  Forsehungen. 
Sch.  Wis.  Ges.  Strassburg  =  Schriften  der  wissenschaftlichen  Gesellschaft 

in  Strassburg. 
S'chrader,  "  Reallexikon"   =  Reallexikon  der  indogermanischen  Altertums- 

kunde,  Grundziige  einer  Kultur-  und  Volkergesehichte  Alteuropas 

(1901). 
Schroder,  "Lehrbuch"   =  Lehrbueh  der  deutsehen  Rechtsgesehiehte. 
Schw.  ZGB    =  Schweizerisehes  Zivilgesetzbuch,  —  see  also  EB. 
Stobbe,  "Beitrjige"    =  BeitrJige  zur  Geschielite  des  deutsehen  Reehts. 
V.     Stengel-Fleisehmann,    "Worterbuch"   =  Worterbuch    des   deutsehen 

Staats-  und  Verwaltungsreehts. 
Stintzing-Landsberg,  "Gesehiehte"   =  Gesehiehte  der  deutsehen  Reehts- 

wissenscliaft. 
Stutz,    "Untersuehungen"     =   Stutz,    ed.,     "  Kirehenreehtliehe    Unter- 

suehungen." 
Thiiringisch-saehsisehe    Z.    G.    K.    =  Thiu'ingisch-saehsisehe    Zeitsehrift 

fiir  Gesehiehte  und  Kunst. 
Unter.  G.  D.  Stadtverf.   =  Untersuehungen  zur  Gesehiehte  der  deutsehen 

Stadtverfassung. 
Vj.  Soz.  W.  G.   =  Vierteljahrsehrift  fiir  Sozial- und  Wirtsehaftsgeschiehte. 
Westd.  Z.  G.  K.   =  Westdeutsehe  Zeitsehrift  fiir  Gesehiehte  und  Kunst. 
W.  B.  der  Volkswirtsehaft  =  Worterbueh  der  Volkswirtsehaft. 
W.  O.   =  Weehselordnung. 
Worter  und  Saehen  =  Worter  und  Saehen,  kulturhistorisehe  Zeitsehrift 

fiir  Spraeh-  und  Sagenforseliung. 
Wien,  K.  Akad.  Wiss.,  Sitz.-Ber.    =  Sitzungsberiehte  der  kaiseriiehen  Aka- 

demie  der  Wissensehaft  in  Wien,  Pliilosophisch-historisehe  Klasse. 
Z.  Volk.  Psy.   =  Zeitsehrift  fiir  Volkerpsychologie. 
Z.  Bergr.   =  Zeitsehrift  fiir  Bergreeht. 

Z.  Vergl.  R.  W.   =  Zeitsehrift  fiir  vergleichende  Reehtswissensehaft. 
Z.  ges.  H.  R.   =  Zeitsehrift  fiir  das  gesammte  Handelsreeht. 
Z.  Priv.  off.  R.   =  Zeitselirift  fiir  das  Privat-  und  offentliehe  Reeht  der 

Gegenwart. 
Z.  schw.  R.   =  Zeitsehrift  fiir  schweizerisehes  Reeht. 

Z.  Sav.  St.  R.  G.   =  Zeitsehrift  der  Sa\agny-Stiftung  fiir  Rechtsgesehiehte. 
Z.  Hand.  R.   =  Zeitsehrift  fiir  Handelsreeht. 
Z.  deut.  R.   =  Zeitsehrift  fiir  deutsehes  Reeht. 
Z.  deut.  Wortf.   =  Zeitsehrift  fiir  deutsche  Wortforschung. 
Z.  deut.  Phil.   =  Zeitsehrift  fiir  deutsche  Philologie. 

Z.  Ver.  Liibeck  G.  A.  K.   =  Zeitsehrift  des  Vereins  fiir  Liibeeksehe  Ge- 
sehiehte und  Altertumskunde. 
Z.  Westpreus.  G.  Ver.    =  Zeitsehrift   des   westpreussischen   Geschiehts- 

vereins. 
Z.  Ver.  Thtiring.  G.   =  Zeitsehrift  des  Vereins  fiir  Thiiringisehe  Gesehiehte. 


lix 


A  HISTORY  OF  GERMANIC 
PRIVATE  LAW 


INTRODUCTION 


Chapter  I 


GENERAL  TRAITS  OF   GERMANIC  PRIVATE  LAW 


§  L    German    Private    Law    before 
the  Reception. 
I.    Disunity  of  the  Law. 

(1)  Racial  law. 

(2)  Territorial  law. 

(3)  Bodies     of      Special 
class  and  local  law. 

II.   Relation    of     Customary 
and  Enacted  Law. 

(1)  Customary  law. 

(2)  Enacted   law,    public 
and  private. 

III.    Content  and  Form  of  the 
Medieval  Private  Law. 
(1)  Its  national  genius. 
Its  unlearned  charac- 
ter. 
Its  external  form. 

(A)  Legal  rules. 

(B)  Symbolical  quali- 
ties. 

Its  content. 
No  separation  of  pri- 
vate from  public  law. 
§  2.    The   Reception. 

I.    The     Medieval     Roman 
Law. 
II.    Preparatory  Circum- 

stances. 
III.    Decisive    Causes    of    the 
Reception. 


(2) 
(3) 


(4) 

(5) 


IV.    Completion  of  the  Recep- 
tion. 

(1)  Judicial  law. 

(2)  Legislation. 

§  3.    German  Private  Law  after  the 
Reception. 
I.    Legal  Unity. 
II.    Content  and  Form  of  the 
Law. 

(1)  German    law    ceased 

to  be  national  law. 

(2)  German  law  became 

a  learned  law. 
III.    Relation  between  Custom- 
ary and  Enacted  Law. 

(1)  Private     autonomous 

enactment        and 
public  legislation. 

(2)  Customary  law. 

(3)  Law  of  the  courts  and 

of  treatise-writers. 
§  4.    German   Private    Law  as    an 
Independent  Science. 
I.    The   Common    Law   and 
Regional    Systems    be- 
fore 1900. 
II.    The    Science   of   German 
Private   Law   prior    to 
1900. 
III.    The  Task  today  of  Ger- 
man Private  Law. 


§  1.  German  Private  Law  before  the  Reception.  —  It  is  only 
through  its  history  that  one  can  understand  the  present-day 
meaning  of  the  phrase  "  German  Private  Law."  The  decisive 
fact  in  that  history  was  the  reception  of  ahen  legal  systems,  above 
all  the  "  Reception  "  of  the  Roman  law.     It  was  only  after,  and 

1 


§  1]  INTRODUCTION  [Chap.  I 

as  a  consequence  of,  the  Reception  tliat  there  was  developed  the 
technical  conception  of  "  German  Private  Law  "  which  appro- 
priated the  special  field  proper  to  it  as  an  independent  branch 
of  German  legal  science. 

In  the  first  place,  if  we  look  at  German  private  law  before 
the  Reception  a  whole  sequence  of  signal  characteristics  can  be 
pointed  out  which  essentially  distinguish  it  in  form  and  content 
from  its  later  form.  But  in  doing  this  we  must  never  lose  sight 
of  the  fact  that  it  was  subjected  during  the  centuries  of  the 
Middle  Ages  to  a  continuous  development,  which  led  it,  with  the 
progress  of  material  and  intellectual  culture,  from  awkward, 
undiversified  beginnings  to  a  richer  development.  At  the  same 
time  certain  features  remained  stamped  upon  it  to  the  very  end 
of  this  period  of  unbroken  growth. 

(I)  Disunity  of  the  Law.  —  From  the  very  beginning  Ger- 
manic law  was  lacking  in  unity  ;  it  was  a  much  disintegrated  law. 
For  though,  from  the  remotest  time,  the  Germans  were  racially 
distinct,  as  a  "  gens  tantum  sui  similis  ",  from  Romans,  Kelts, 
and  Slavs,  and  even  from  their  Germanic  brothers,  they  have 
nevertheless  always,  like  the  Greeks,  been  characterized  i)oliti- 
cally  by  particularism.  The  dismeiiiberment  of  the  law  was 
manifested  in  several  respects. 

(1)  Racial  law  ("  Stammesrecht  ").  —  Germanic  law,  private^ 
not  less  than  public,  was  already  a  racial  law  in  its  earliest  recog- 
nizable form.  For  the  laws  of  the  individual  Germanic  racial 
branches  ("  Stamme  ")  had  originated  in  and  developed  upon  a 
basis  of  common  habit  and  legal  conviction,  though  they  never- 
theless reveal  many  variations  which,  under  the  influence  of 
external  circumstances,  might  attain  considerable  importance. 
According  to  the  old  Germanic  view  the  racial  law  was  not  only 
binding  upon  the  members  of  the  racial  branch,  but  was  als» 
determinant  of  all  legal  relations  that  arose  witliin  the  territory 
occupied  by  the  "  Stamm."  Men  knew  no  law  other  than  their 
own  :  where  they  could  not  or  would  not  api)]y  that,  there  was 
no  law  at  all.  The  Burgundians  and  Lombards,  probably  also 
the  Visigoths,  clung  to  this  principle  in  the  States  later  founded 
by  them  ;  and  among  the  Franks,  also,  it  prevailed  down  to  the 
time  of  the  "Lex  Salica."  Li  the  later  Frankish  empire,  however, 
there  was  developed  the  contrasting  principle  of  '^  personality  ", 
as  it  is  called,  which  presupposed  a  recognition  of  the  parity 
of  all  the  racial  branches  ruled  by  the  Frankish  King,  and  of  their 
laws.     Interpreted  in  terms  of  the  personality-principle,  "  racial- 

2 


Chap.  I]  GENERAL   TRAITS  [§  1 

law  "  was  simply  the  law  of  the  members  of  the  "  Stamm."  It 
was  applied  to  them  whether  resident  within  or  without  the  terri- 
tory of  their  "  Stamm  " :  every  subject  of  the  Empire  carried 
about  with  him  throughout  the  Empire  the  law  of  his  racial 
branch.  Law  was  determined  solely  by  personal,  not  by  terri- 
torial, bonds  of  mutual  dependence.  / 

(2)  Territorial  law  ("Ijandrecht"). — When  the  rigid  frame 
of  the  Carolingian  monarchy  began  to  loosen,  the  principle  of 
personal  law  again  gradually  disappeared,  and  the  territorial 
principle  took  its  place  in  ever  increasing  degree.  Racial  law 
became  territorial  law.  A  man  was  no  longer  born  into  the  law  of 
his  forefathers,  but  into  the  law  of  his  home.  And  once  again 
the  law,  —  henceforth  as  territorial  law,  —  laid  hold  upon  every- 
thing in  legal  life  (with  certain  definite  exceptions)  that  happened 
within  a  given  territory.  Distinct  provinces  with  variant  legal 
systems  were  thus  formed  within  the  domain  of  the  Germanic 
law ;  provinces  which,  as  lands  of  Frankish  law,  of  Saxon  law, 
and  so  on,  originally  coincided  with  the  boundaries  of  the  racial 
duchies.  But  while  this  territorial  law,  at  least  in  its  beginnings, 
was  a  unitary  law,  —  a  law  that  prevailed  uniformly  in  all  parts 
of  the  region  throughout  which  it  had  validity  (although,  to  be 
sure,  we  find,  even  in  the  Frankish  period,  local  legal  growths 
within  the  racial  domains  of  Saxons,  Anglo-Saxons,  Lombards, 
and  Franks),  —  this  condition  also  came  to  an  end  as  political 
dismemberment  increased.  The  great  legal  provinces  marked 
off  by  racial  settlement  split  up  into  increasingly  small  and 
numerous  districts,  within  each  of  which  legal  development  went 
on  independently ;  because  there  were  everywhere  lacking  the 
bases  of  constitutional  law  necessary  for  the  enforcement  of  a 
uniform  (i.e.  a  centralized)  law.  Franchised  districts,  princi- 
palities ("  Landesherrschaften  "),  and  towns  detached  themselves 
as  independent  jurisdictional  fragments  from  the  old  territory  of 
the  racial  law.  Finall\'  things  went  so  far  that  every  court  fol- 
lowed the  legal  customs  of  its  particular  district. 

(3)  Bodies  of  special  class  and  local  law^  ("  Rechtskreise  ")•  — 
Along  with  tlie  breaking  up  of  the  domain  of  the  territorial  law 
into  jurisdictions  geographically  separate  there  went  on  a  di\ision 
—  particularly  significant  for  the  medieval  period  —  of  the  orig- 
inally unitary  racial  or  territorial  law  itself  into  various  special 
legal  systems  for  distinct  legal  classes  and  districts   ("  Rechts- 

1  Heusler,  "Institutionen",  I,  23-44. 
3 


§  1]  INTRODUCTION  [Chap.  I 

kreise  ").  The  racial  law  had  originally  been  supreme  over 
all  members  of  the  racial  branch  in  all  their  lo<::al  relations,  and 
the  territorial  law  had  enjoyed  a  similarly  unqualified  authority 
within  the  region  in  which  it  prevailed,  but  this  condition  of 
things  changetl  about  the  beginning  of  the  Middle  Ages  proper, 
—  or  say  about  the  end  of  the  900  s.  The  territorial  law,  which 
was  "  pointed  out  "  or  declared  in  the  ordinary  county-courts  by 
the  lay-judges  ("Schoffen  "),  was  not  capable  of  keeping  pace  with 
the  necessities  of  advancing  economic  development.  Especially 
in  the  cities,  where  trade  and  handiwork  called  into  existence 
wholly  new  legal  institutes,  men  could  not  get  along  with  a  terri- 
torial law  adjusted  to  a  rural  economy.  For  that  very  reason, 
as  has  been  remarked,  the  cities  broke  away  from  the  domain 
of  the  territorial  law  as  districts  of  independent  law.  City  law 
was  "  a  further  development  of  the  territorial  law  upon  a  more 
advanced  economic  plane."  But  city  law  within  its  jurisdiction 
was  the  same  as  the  ordinary  territorial  law  within  its  juris- 
diction :  namely,  a  general  law  that  found  uniform  application 
to  all  residents  of  the  district  and  all  local  legal  relations. 

It  was  different,  however,  with  the  detachment  from  the  terri- 
torial law  of  independent  bodies  of  feudal,  servitary,  and  manorial 
law.  This  phenomenon,  as  Heusler  has  shown,  is  by  no  means 
sufficiently  explained  by  conceiving  it  as  an  accompaniment  and 
consequence  of  the  development  of  the  special  estates  of  knights, 
servitors,  and  serfs.  Feudal,  servitary,  and  manorial  law  were 
originally  not  laws  of  estates,  —  i.e.  peculiar  laws  of  definite 
classes  of  the  population.  They  had  to  do  with  particular  legal 
relations.  They  had  originally  a  material,  not  a  personal,  basis ; 
an  objective,  not  a  subjective,  character.  They  were  the  law  of 
those  feudal,  servitary,  and  manorial  legal  relations  which  became 
established  between  feudal,  personal,  and  manorial  lords  on  one 
side  and  their  tenants  on  the  other,  as  well  as  among  the  latter 
themselves,  and  which  found  their  special  nucleus  in  the  feudal, 
servitary,  and  manorial  courts,  wherein  they  received  inde- 
pendent development.  In  so  far  as  these  legal  relations  were 
withdrawn  from  the  old  (rural)  moots  that  administered  the 
territorial  law  and  were  abandoned  to  the  seigniorial  courts,  the 
development  of  the  feudal,  servitary,  and  manorial  law  was  a  cor- 
responding loss  to  the  territorial  law,  and  was  another,  and  espe- 
cially weighty,  cause  of  legal  decentralization.  They  constituted 
independent  bodies  of  law,  alongside  the  territorial  and  the  city 
law :     Heusler    calls    them    "  Spezialrechte  "    ("  special  "    legal 

4 


Chap.  I]  GENERAL  TRAITS  [§  1 

systems),  as  contrasted  with  the  general  law  applied  in  the  town 
and  rural  courts.  That  this  remained  the  general  law  is  shown 
by  the  fact  that  even  those  persons  who  lived  in  feudal,  servitary, 
or  manorial  legal  relations  with  a  lord  were  by  no  means  thereby 
wholly  withdra\vn  from  the  authority  of  the  territorial  law.  Serfs 
were  subject  to  the  territorial  law  for  misdeeds  which  they  com- 
mitted or  suffered  outside  the  manorial  community,  and  for  those 
legal  arrangements  ("  Rechtsgeschafte  ")  which  they  were  per- 
mitted to  enter  into  with  outsiders.  Similarly,  the  liegeman 
as  respects  land  held  freely,  in  addition  to  his  fief.  Again,  the 
burgher  might  acquire  a  manorial  holding,  and  he  then  became 
subject,  for  this,  to  the  manorial  law. 

This  tendency  of  medieval  law  to  develop  particular  "  Rechts- 
kreise  "  (bodies  of  special  class  and  local  law)  attained  as  time  went 
on  an  ever  more  decided  predominance.  And  the  basis  of  these 
did  not  remain  purely  material.  There  were  added  to  the 
law  of  feudal,  servitary,  and  manorial  relations,  as  new  bodies  of 
"  special  "  law,  regulations  of  mines,  dikes,  the  chase  and  similar 
matters ;  but  independent  bodies  of  law  were  developed  as  well 
for  specific  social  classes  united  by  blood  or  by  occupation,  —  as 
e.g.  for  nobles,  princes,  merchants,  artisans,  public  officials,  etc. 

(II)  Relation  of  Customary  and  Enacted  Law  ("  Gewohn- 
heitsrecht  ").^  —  (1)  Customary  law.  —  In  the  earliest  times  law 
rested,  among  the  Germanic  peoples  as  elsewhere,  upon  cus- 
tom;  and  differed  only  slightly  from  mere  habit.  It  found  ex- 
pression in  the  judgments  of  courts;  perhaps  already,  too,  in 
judicial  "  findings  "  of  law  ("  Rechtsweisungen  ")•  It  may  be,  of 
course,  that  even  in  primitive  times  individual  public  statutes 
were  issued  and  conventions  that  established  law  concluded ; 
such,  however,  must  certainly  have  been  but  rare  exceptions. 
After  the  migrations  of  the  Germanic  tribes,  it  is  true,  the  differ- 
ent Germanic  racial  branches  made  comprehensive  records  of 
their  law.  But  these  so-called  folk-laws  or  "  Leges  Barbarorum  " 
were,  in  their  original  form,  essentially  written  formulations 
of  old  customary  law.  It  is  true  they  were  frequently  made 
part  of  royal  legislative  acts,  and  also  variously  modified 
or  supplemented  by  legislative  "  novels."  Frequently,  however, 
these  supplementary  laws  themselves  were  not  actual  public 
statutes,  but  only  "declarations  of  legal  practice  or  records  of 

1  Brie,  "Die Lehre  vom Gewohnheitsrecht.  Eine  historisch-dogmatische 
Untersuehung,  I :  Geschiehtliehe  Gruadlegung,  bis  zum  Ausgang  des 
Mittelalters"   (1899),  202  et  seq. 

5 


§  1]  INTRODUCTION  [Chap.  I 

dooms."  ^  Moreover,  the  folk-laws  were  never  exhaustive  legal 
records ;  numerous  imwritten  rules  of  customary  law  remained 
in  authority  beside  them.  Even  the  Prankish  capitularies  did 
not  sweep  aside  the  customary  law.  And  for  private  law  the 
whole  legislation  of  the  Frankish  period  had  almost  no  significance 
whatever. 

After  the  disintegration  of  the  Frankish  Empire  the  folk-laws 
and  the  capitularies  gradually  fell  into  oblivion,  until  in  the  1000  s 
they  were  completely  forgotten.  Almost  no  new  statutory  law 
appeared  until  in  the  1200  s.  Thus  the  norms  of  the  customary 
law  again  became  almost  exclusively  authoritative.  Again,  the 
general  imperial  statutes  of  the  later  Middle  Ages,  which  from 
beginning  to  end  left  the  private  law  almost  wholly  unnoticed, 
confined  themselves,  substantially,  to  the  confirmation  of  actual 
conditions  already  recognized  by  the  customary  law  ;  or  attempted, 
in  rarer  cases,  to  do  away  with  such.  The  numerous  official  records 
of  the  law  made  in  jurisdictions  of  the  territorial  and  manorial 
law,  and  by  associational  groups  ("  genossenschaftliche  Ver- 
bande  "),  likewise  embodied,  for  the  greater  part,  old  customary 
law.  Only  in  the  cities  was  a  richer  legislative  activity  developed. 
The  private  digests  of  the  law,  the  Sachsenspiegel  and  its  successors, 
also  drew  their  materials,  for  the  most  part,  from  the  customary 
law. 

At  least  in  so  far  as  rules  of  private  law  were  concerned,  the  me- 
dieval customary  law  was  almost  wholly  of  a  particularistic  char- 
acter, and  developed  within  more  or  less  narrow  legal  spheres 
("  Rechtskreisen  "),  partly  geographical,  partly  personal  or  social. 
A  scientific  theory  of  the  customary  law  was,  of  course,  lacking. 
Something  unstable,  which  one  rather  feels  than  sees,  characterized 
its  whole  development.  Even  the  current  names  of  the  customary 
law  implied  at  times  statutory  law :  "  consuetudo  ",  "  mos  ", 
"  ritus  ",  "lex",  "lex  et  consuetudo",  "  ius  et  consuetudo", 
"pactus",  "Gewohnheit"  —  custom;  "  Sitte  "  —  habit; 
"  Brauch  "  —  usage  ;  "  Herkommen  "  —  tradition  ;  "  Recht  und 
Gewohnheit  "  —  what  is  right  and  customary  ;  "  rechte  Gewohn- 
heit "  —  good  and  ancient  practices ;  etc.  Xeverthcless  there 
was  a  general  agreement  in  the  views  that  prev'ailed  of  the  essen- 
tial qualities  and  significance  of  the  customary  law. 

The  greatest  importance  was  generally  attached  to  its  age; 
to  preserve  faithfully  to  coming  generations  the  usage  of  their 

^  Brunner,  "Geschichte",  I  (2d  ed.),  424. 
6 


Chap.  I]  general  traits  [§  1 

fathers,  as  an  inherited  treasure,  was  regarded  as  a  sacred  duty. 
Therefore  it  was  that  Eike  von  Repgow,  in  the  heart-touching 
words  of  his  rhymed  preface,  explained  that  he  had  not  spun  out 
of  his  own  head  the  law  that  he  there  presented,  but  that  "  iz 
haben  von  aid  ere  an  unsich  gebracht  unse  gude  vore  varen  " 
("  our  good  forefathers  have  brouglit  it  down  to  us  from  olden 
times  ")•  The  requirement  that  the  legal  rule  must  be  one  actually 
practised  also  found  occasional  expression,  Xot  less  insistent 
were  men  that  the  custom  must  be  a  good  and  just  one,  for  as 
the  legal  proverb  ran :  "  A  hundred  years  of  wrong  can  never  be 
right  "  —  ("  Hundert  Jahre  Unrecht  getan  wird  nimmer  Recht 
getan  ").  The  influence  of  the  Christian  church  early  attacked 
legal  rules  with  heathen  reminiscences  as  sinful  customs.  Only 
those  customs  consonant  with  the  Church's  law  are  characterized 
by  the  Schwabenspiegel  as  "  good."  To  the  customary  law  was 
attributed  a  force  at  least  equal  to  that  of  a  public  statute ;  not 
infrequently,  indeed,  a  yet  higher  prestige  was  ascribed  to  it  than 
to  the  statutory  law,  and  even  the  power  of  nullifying  statutes. 
Inasmuch  as  the  customary  law  was  an  actual  law,  the  courts 
were  bound  to  apply  it  without  question.  It  was  rarely  necessary, 
indeed,  to  inquire  deeply  into  it,  since  the  judgment-finders  were 
immediately  conscious  of  it.  At  the  same  time  records  were 
willingly  made  of  it  to  the  end  of  safely  preserving  it.  This  pur- 
pose was  served  by  the  dooms,  especially  in  the  rural  districts. 

(2)  Enacted  law  ("  Satzungsrecht  "),  public  ("  Gesetz  ")  and 
-private  ("  Satzung  "). — The  legislation  of  the  empire  abstained 
almost  wholly  from  interference  with  the  private  law.  The 
slight  amount  of  enacted  private  law  which  the  entire  medieval 
period  produced  owed  its  existence  to  the  autonomy  ("  Satzungs- 
gewalt  ",  "  Autonomic  ")  of  unions  narrower  than  the  State,  — 
Territory,  towns,  seigniories,  and  associations  ("  Genossenschaf- 
ten  "), — ^to  all  of  which  there  belonged  in  medieval  polity  an 
independent  enacting  power  ("  Satzungsrecht  ")  for  their  respec- 
tive jurisdictions.  The  law  thus  produced  was  itself  called 
"  Autonomic  "  ;  other  expressions  were  "  Willkiir  ",  "  Einung  ", 
*' Beliebung  ",  "  Ordnung  ",  "  Statut  "  ("self-imposed  rules", 
*'  agreements  ",  "  voluntary  agreements  ",  "  ordinances  ",  "  stat- 
utes ").  The  "Statut"  was  contrasted  with  the  "Gesetz"; 
for  in  the  medieval  theory  of  the  State  only  the  law  "  set  "  ("  ge- 
setztes  Recht  ")  by  the  emperor  or  pope  was  regarded  as  true 
"  Gesetz."  This  contrast  of  public  and  private  statutes  disapn 
peared,  it  is  true,  during  the  medieval  period  itself,  for  as  soon  as 

7 


§  1]  INTRODUCTION  [Chap.  I 

the  Territories  and  the  cities  developed  into  poUtical  entities  the 
conception  of  the  "  Gesetz  "  was  extended  to  formulations  of 
legal  rules  that  originated  in  them,  and  thenceforward  the 
conception  of  "  Autonomic  "  was  applied,  substantially,  only  to 
the  statutes  of  other  groups,  especially  those  of  the  communes. 

(Ill)  The  Content  and  Form  of  the  Medieval  Private  Law  show 
that  it  was  still,  on  the  whole,  in  an  early  stage  of  development. 

(1)  Its  national  genius  it  preserved  during  the  greatest  part 
of  the  Middle  Ages.  It  did  not,  indeed,  remain  wholly  unaffected 
by  foreign  influences,  for  an  acquaintance  with  the  advanced 
civilization  of  the  old  provinces  of  the  Roman  empire  prompted 
borrowings  of  foreign  legal  institutions.  Thus  the  late  Roman 
documentary  system  was  ver}'  early  taken  over ;  the  usage  of 
testamentary  dispositions  was  gradually  introduced  on  the  model 
of  the  ancient  customary  law,  etc.  But  the  character  of  the  law, 
as  a  whole,  was  not  thereby  affected.  Alien  influences  were  con- 
fined to  isolated  matters,  or  acquired  authority  over  special 
classes  of  society  only,  or  over  isolated  portions  of  the  land.  And 
the  foreign  matter  that  was  adopted  was  fused  completely  with 
the  native  mass.  The  German  people,  especially  in  its  rural 
strata,  —  by  far  its  predominant  portion,  —  lived,  down  into  the 
1200  s,  under  a  private  law  practically  purely  national :  the  legal 
materials  of  the  Sachsenspiegel  were  still  exclusively  native.  It 
was  only  after  this  that  the  strength  of  the  alien  influences  began 
gradually  to  increase.  Needless  to  say,  however,  this  national 
law  was  itself  no  product  developed  in  absolute  isolation.  It 
grew  up  upon  a  basis  of  common  Germanic  traits  of  mind ;  it 
was  developed  under  economic  conditions  that  were  essentially 
alike  throughout  the  whole  of  medieval  Europe,  though  these 
became  influential  (for  the  most  part)  somewhat  later  in  Germany 
than  in  the  more  westerly  and  southerly  portions  of  the  continent. 
The  influences  of  Christianity  and  of  the  Church  upon  the  law 
were  also  identical  in  all  occidental  countries.  Doubtless  the 
intellectual  genius  of  nations  is  felt  within  the  domain  of  law, 
but,  upon  the  whole,  legal  development  depends  far  more  upon 
economic  conditions. 

(2)  Its  unlearned  character  revealed  the  juvenile  stage  of  its 
development.  It  lived,  like  morality  and  faith,  within  the 
consciousness,  or  rather  within  the  feelings,  of  the  common  man.^ 
There  was  no  need  yet  for  scholars  who  made  out  of  its  study  an 

^  V.  Amira,  "Recht",  7. 

8 


Chap.  I]  GENERAL   TRAITS  [§  1 

independent  profession.  Every  free  member  of  the  community 
knew  how  to  apply  it  to  the  legal  transactions  of  everyday  life, 
and  took  part,  in  the  court,  in  its  application.  In  his  charming 
study  "  Von  der  Poesie  im  llecht  ' '/  Jacob  Grimm  therefore  rightly 
compares  the  old  law  with  the  ballad  :  "  the  song  belonged  to  no 
poet ;  whoever  sang  it  made  it  more  true  and  more  perfect  in 
the  singing ;  just  as  little  did  the  prestige  of  the  law  proceed  from 
the  judge,  who  could  not  make  a  new  one ;  the  minstrels  were 
guardians  of  the  common  property  of  song,  and  the  judgment 
finders  were  entrusted  with  the  office  and  ministry  of  the  laws." 
Law  was  looked  upon,  not  as  fortuitous  human  statute,  but  as 
something  sacred,  to  be  reverenced,  standing  above  the  will  of 
man.  Under  the  influence  of  Christian  doctrine  these  immemo- 
rial ideas  were  restated  in  the  form  that  the  law  comes  from 
God,  that  God  himself  is  the  law;  plaints  were  addressed  to  God 
and  the  judge ;  the  last  judgment  was  painted  in  the  town-halls, 
to  the  end  of  reminding  the  judges  that  they  should  declare  the 
right  as  representatives  of  eternal  justice  and  in  the  name  of  God. 
Beyond  this,  men  did  not  bother  their  heads  about  the  nature 
of  law.  But  that  men  felt,  at  least  instinctively,  the  many- 
sided  significance  of  law,  the  distinction  between  legal  norms 
("  Rechtsnorm  ")  and  legal  rights  or  authority  ("  Rechtsbefugnis  "), 
is  evidenced  by  the  rich  terminology  which  Germanic  languages 
possess  for  the  conception  "  Recht."  So  e.g.  words  like  "  lagh  ", 
"  bifida  ",  "  gizunft  ",  "  eva  ",  signified  rule,  norm,  law  in 
the  objective  sense;  while,  on  the  other  hand,  "  reht  "  ("rec- 
tum ",  M.  Lat.  "  directum  ")  meant  that  w^hich  is  directed 
("  gerichtet  "),  brought  into  harmony  with  a  rule,  the  appointed 
social  order,  the  right  to  act  ("  Befugnis  "),  law  in  the  subjective 
sense. 

(3)  Its  external  form  affords  the  most  striking  indication  that 
Germanic  law,  at  least  until  the  culmination  of  the  Middle  Ages, 
still  remained  in  a  juvenile  stage  of  development.  What  Jacob 
Grimm  called  the  "  sensuous  element  "  outweighed  by  far  the 
abstract,  the  logical,  the  conceptual.  In  this  respect  also  the  law 
was  still  in  the  closest  consonance  with  all  other  aspects  of  popular 
life.^    When  we  find  that  the  German  law  of  the  early  JNIiddle 

iZ.  Gesch.  R.  W.,  II  (1815),  25-99;  also  in  his  "Kleine  Schriften", 
VI  (1882),  152-191. 

2  Most,  and  in  a  certain  sense  all,  parts  of  the  great  masterpiece  of 
Jacob  Grimm,  "Deutsche  Rechtsaltertumer "  (1st  ed.  1828,  4th  ed.  1899), 
deal  with  this  sensuous  element  of  the  old  law.  In  this  work  he  develops 
with  unrivalled  knowledge  of  the  sources  and  in  the  broadest  possible 

9 


§  1]  INTRODUCTION  [Chap.  I 

Ages,  —  like  the  French  and  the  EngHsh,  hut  unhke  the  matter- 
of-fact  Scandinavian  hiw,  —  was  distinguished  by  an  especial 
affluence  of  forms  and  symbols,  we  must  accept  this  as  the  result 
of  an  already  advanced  development ;  for  the  primitive  period 
seems  to  have  contented  itself  with  few,  but  clear  and  simple  legal 
forms. ^  The  numerous  phenomena  that  are  here  in  question 
aflPect,  as  Heusler  has  shown,^  on  one  hand  the  mode  of  formulat- 
ing legal  rules,  on  the  other  hand  the  form  of  legal  transactions. 

(A)  Legal  rules  were  conceived  "  plastically  ",  in  a  "  naively 
demonstrative  "  manner,  and  expressed  "  in  a  way  that  creates, 
out  of  concrete,  sensuous  forms  and  phenomena  a  picture,  as 
original  as  possible,  which,  thanks  to  that  quality,  remains  stamped 
on  the  memory." ^  From  the  same  quality  the  old  legal  terminology 
derived  its  strong  suggestion  of  poetry.  It  loved  alliterative 
compounds  ("  Erbe  und  Eigen  ",  —  heritage  and  title ;  "  hoven 
und  hausen  ",  —  homestead  and  house  ;  "  recht  und  redlich  ",  — 
right  and  righteous ;  "  was  die  Fackel  zehrt  ist  Fahrnis  ",  — 
whatever  the  torch  devours  is  chattels) ;  rh^-mes  ("  ungehabt  und 
ungestabt  ",  —  without  keep  or  staff ;  "  wer  darf  jagen  darf 
auch  hagen  ",  —  he  who  has  the  right  to  hunt  may  also  hedge  the 
land) ;  tautologies  ("  getreu,  hold  und  gehorsam  ",  —  true,  loyal, 
and  obedient) ;  the  negative  conclusion  ("  frei  und  nicht  eigen  ", 
—  free  and  not  servile).  Men  were  especially  prone  to  express 
provisions  relating  to  time  and  space  in  such  a  naive  and  inexact 
way  as  left  room  for  chance  in  particular  cases.  It  is  often  de- 
clared that  something  shall  be  the  rule  as  far  as  a  cock  walks,  or 
flies,  a  cat  springs,  as  a  stone  or  hammer  is  thrown,  as  one  can 
reach  with  a  sickle.  A  law  shall  endure  so  long  as  the  wind  blows 
from  the  clouds  and  the  world  stands,  so  long  as  the  Main  flows 
into  the  Rhine,  etc.  If  the  shortness  of  a  period  of  time  is  to  be 
indicated,  it  is  provided  that  a  piece  of  land  may  be  acquired 
during  the  sleep  of  the  king,  during  the  midday  nap  of  the  em- 
peror ;  or  so  much  land  shall  be  acquired  as  can  be  ridden  round 
in  a  certain  time  on  horse  or  ass,  turned   over  with   the   plow, 

manner  the  ideas  summarily  expressed  in  the  essay  above  cited,  "Von 
der  Poesie  im  Recht."  See  also  Gierke,  "Der  Humor  im  doutsohen 
Recht"  (2d  od.  188G) ;  the  remarks  of  Heusler  in  "  Institutioncn",  I, 
45-9'2 ;  V.  Zalliiujer,  "Wesen  und  Urspruns:  dos  For?iiaIismus  iin  alt- 
deutschen  Privatrecht"  (1808);  linrchling,  "  Poesie  und  Humor  in  frios- 
ischen  Recht",  in  "Abhandlungcn  und  Vortrage  zur  Geschichte  Ostfries- 
lands",  X  (1908). 

•  ^r?inw^r,  "Creschiohte",  I  (2d  ed.),  153. 

*  "  Institutionen",  I,  05  el  scq. 
^  Ibid.,  05. 

10 


Chap.  I]  GENERAL   TRAITS  [§  1 

or  covered  with  hides.  The  formulas  that  interpret  how  high, 
heavy,  and  numerous  are  the  taxes,  afford  an  especial  wealth  of 
examples. 

(B)  Very  intimately  connected  with  this  naively  sensuous 
manner  of  expression  was  the  symbolical  quality  ("  die  Plastik  ") 
of  legal  transactions.  Germanic  law,  like  all  juvenile  law,  was 
rich  in  striking  symbols  and  solemnities,  adapted  to  every  event. 
Its  symbols,  as  Heusler  has  shown,  were  imaginal  forms  created 
for  the  purpose  of  giving  visible  expression  to  an  abstract  event; 
its  solemnities  were  the  exaggeration  of  essential  words  and  acts 
into  ceremonial  allocutions  and  actions.  The  things  employed 
as  symbols  were  extraordinarily  numerous.  The  livery  of  seisin 
was  manifested  by  the  manual  tradition  of  twig  and  turf  or  hat 
and  glove,  the  touching  of  the  altar-cloth  or  the  bell-rope.  One 
who  entered  into  servitude  delivered  the  hair  cut  from  his  head 
and  beard.  The  widow  who  wished  to  free  herself  from  liability 
for  debts  laid  the  house-key  or  her  mantle  upon  the  bier  or  the 
grave  of  her  dead  husband. 

The  token  that  occurs  most  frequently  is  the  staff.  According 
to  the  exhaustive  investigations  of  von  Amira,^  the  walking-staff 
may  be  regarded  as  the  "  common-ancestor  "  of  s^Tnbolic  staffs. 
From  it  were  derived  the  messenger's  pike  and  the  staff  of  office, 
the  latter  very  extensively  used  as  the  tipstaff  and  the  judge's 
rod.  Emperor,  dukes,  princes,  communal  magistrates,  the  mas- 
ters of  gilds  and  corporate  associations,  carried  the  staff  as  the 
sj^mbol  of  authority.  In  the  private  law  the  use  of  the  staff  in 
legal  transactions  was  of  particular  importance :  e.g.  throwing  it 
away  in  renunciation  of  one's  sib  and  in  conveying  of  land,  and 
the  delivery  of  a  staff  in  the  contract  of  pledge.  In  the  field  of 
mimic  symbolry  the  law  made  use  above  all,  and  in  the  most  vari- 
ous manners,  of  the  gesture-language  of  the  hand,  the  "  most 
obvious,  natural,  and  simple  of  signs  "  (J.  Grimm) .^  The  hand- 
clasp was  the  usual  confirmation  of  pledges  of  faith  ("  Geliibde  ", 
—  "fides  facta")  and  of  contracts.     By  giving  his  hand  a  person 

'  w.  Amira,  "Der  Stab  in  der  germanisohen  Rechts-svmbolik",  in 
K.Bayer.  Akad.  Wiss.,  "Abhandlungen",  XXV  (1909),  "Abhandlung" 
no.  1.  Compare  with  this  the  detailed  references  of  /?.  Schroder  in 
Z2.  R.  G.,  XXX  (1909),  430-451  ;  A.  Schultze  in  Hist.  Z.,  CV  (3d  ser.  IX, 
1910),  132-142;  Gnldmnnn  in  "Deutsche  Literaturzeituns;"  of  1910, 
nos.  41-42.  Also  R.inlden,  "Der  Geriehtsstab  in  den  osterreiehisehen 
Weistiimern",  in  the  "Festgabe  fiir  Brimner"  (1910),  631-648. 

2  y.  Amira,  "Die  Handgebarden  in  den  Bilderhandsehriften  des 
Sachsenspiegels",  in  K.  Bayer.  Akad.  Wiss.,  "  Abhandlungen  "  I,  (I  Kl.), 
XXIII,  2  (1905). 

11 


§  1]  INTRODUCTION  [Chap.  I 

gave  himself  into  the  power  of  his  lord.  The  hand  was  essential 
to  an  oath.  In  making  a  vow,  in  accepting  a  vow,  in  expressing 
agreement,  in  making  recompense,  the  finger  was  raised ;  in 
expressing  renunciation  it  was  bent.  In  actions  for  the  recov- 
ery of  a  chattel  of  whose  possession  one  had  been  involuntarily- 
deprived  ("  Anefangsklage  "),  the  hand  was  laid  against  or  upon 
the  chattel  in  taking  possession;  and  similarly  in  the  execution 
of  a  legal  document.  In  many  cases  everything  depended  upon 
a  correct  position  of  the  body.  "  Various  ceremonials  in  seating 
oneself  ("  Sitzriten ")  were  observed  in  taking  possession 
{"  Besitz  ",  *  be-seating  ')  of  land,  as  well  as  of  public  offices  and 
seigniories  "  ;  and  the  object,  too,  upon  which  one  must  sit  (chair, 
bench,  or  earth),  and  the  quarter  of  the  heavens  toward  which  the 
sitter  must  look,  were  exactly  prescribed.  Much  of  this  palpable 
legal  symbolism  that  still  flourished  in  the  Prankish  period  was 
early  lost;  some  maintained  itself  longer — the  symbolism  of 
manual  pantomime  proved  capable,  according  to  von  Amira,  of 
producing  new  variations,  in  actual  practice,  so  late  as  the  time  of 
the  Sachsenspiegel.  Its  time  passed  irrevocably  with  the  im- 
pairment of  the  original  public  character  of  the  popular  courts, 
and  with  the  increase  of  written  procedure ;  for  "  writing  is  the 
sworn  enemy  of  all  [other]  sensuous  representation."  ^  And  in 
the  second  half  of  the  Middle  Ages  abstract  formulas,  written 
protocols,  and  registry  in  books,  became  increasingly  noticeable, 
in  German  as  in  other  law.  Much  that  was  charming  was  thereby 
necessarily  lost  forever.  Jacob  Grimm  regretfully  compares 
the  law  of  the  good  old  times  with  that  of  the  new :  "  in  place  of 
its  colorfuU  symbols,  bundles  of  documents ;  in  place  of  its  quick- 
found  judgments,  lawsuits  lasting  for  years ;  in  place  of  its  court 
under  the  blue  of  heaven,  stuffy  record  offices ;  in  place  of  rents 
in  fowl  and  shrovetide  eggs,  a  bailiff  comes  to  extort  nameless 
tributes  in  every  season  of  the  year." 

(4)  The  older  private  law  was  also  influenced  as  respects  its 
content  by  the  predominance  of  the  sensory  element ;  for  it  was 
cliaracterizod  by  what  has  been  called  "  pigeon-hole  law  "  ("  Reclit- 
schablone  ")  or  "  casuistic  formalism  "  ('*  typischer  Formalis- 
mus  ").2  The  Germanic  people,  like  others,  lacked  in  the  first 
stages  of  its  history  that  degree  of  capacity  for  abstract  thought 
which  is  necessary  in  order  to  conceive  of  legal  relations  as  that 
which  they  really  are ;  namely  as  facts,  purely  and  simply,  of  men's 

1  Jlcnsler,   "Institutionen",   I,  75. 

^  Ibid.,  I,  49  et  seq. ;  v.  Zallinger,  "Formalisinus." 

12 


Chap.  I]  GENERAL  TRAITS  L§  1 

mental  life.  Men  clung  to  visible  and  tangible  things,  and  rea- 
soned "a  posteriori"  from  the  external  facts  of  the  sensory  phe- 
nomenon back  to  the  inner  and  intellectual  basis.  At  the  same 
time  only  those  particular  sensible  manifestations  were  at  first 
heeded  which  revealed  such  facts  of  men's  intellectual  life  in  aver- 
age or  normal  cases :  which  constituted  their  t3'pical  and  normal 
expression.  This  principle  we  meet  in  all  parts  of  the  older  law, 
e.g.  in  procedure,  where  only  declarations  made  and  processual 
acts  performed  in  a  definite  mode  were  valid,  —  "  one  man  one 
word  ",  "  qui  cadit  a  syllaba  cadit  a  tota  causa  " ;  and  in  criminal 
law,  where  only  the  physical  consequence  was  punished.  It 
dominated  also  the  old  private  law :  "  the  recognition  and  full 
validity  in  practice  of  private  legal  transactions  were  made  abso- 
lutely dependent  upon  embodiment  in  some  certain  dress  of 
external  circumstances;  upon  being  made  visible  in  a  definite 
form."  ^  Thus,  for  example,  the  law  associated  capacity  for 
rights  and  capacity  to  do  legal  acts  with  definite  and  easily  recog- 
nizable physical  signs.  The  new  born  child  must  have  "  cried 
to  the  four  walls  "  in  order  to  inherit ;  in  order  to  make  a  valid 
testamentary  disposition  one  must  be  in  a  condition  to  mount  on 
horseback  from  a  stone  about  fifteen  inches  ("  Daumelle  ")  high, 
unaided  and  with  sword  and  shield.  The  law  of  things  was  not 
built  up  upon  an  abstract  conception  of  ownership,  but  upon  that 
of  seisin,  —  i.e.  upon  the  actual,  external  element  of  physical 
control,  as  seen  in  the  usufruct  of  lands  and  in  the  occupancy  or 
physical  custody  of  chattels.  What  right  might  underlie  this 
physical  control  was  regarded  at  first  as  immaterial ;  on  the 
other  hand,  absolutely  all  rights  in  things  must  be  clothed  in  this 
typical  external  form.  If  a  legal  tie,  a  liability  ("  Verhaftung  "), 
was  to  arise  from  an  agreement  ("Schuldvertrag  ") — -i.e.  a  "  must" 
and  not  merely  a  "  should  "  —  there  must  be  established  a  rela- 
tion of  control  capable  of  a  visible  physical  embodiment;  the 
debtor  must  furnish  his  creditor  with  a  legally  appointed  power 
either  over  a  person  ("  Geisel  "  =  hostage,  or  pledge;  "  Biir- 
gen  "  =  surety)  or  over  a  thing  ("  Pfand  "  =  pledge).  As  rights 
of  dominion  over  things  were  bound  to  take  the  form  of  seisin, 
so  all  relationships  of  power  over  persons  found  their  visible  ex- 
pression in  the  "  Munt  "  (representation)  of  the  power-holder. 

The  emphasis  put  upon  the  visible  outward  form  of  a  legal 
relation,  the  decisive  importance  attributed  to  the  publicity  of 

1  V.  Zollinger,  op.  cil.,  6. 
13 


§  1]  INTRODUCTION  [Chap.  I 

juristic  acts,  served  in  a  remarkable  manner  the  security  of  legal 
transactions.  Whatever  had  been  declared  before  the  community 
and  confirmed  by  the  communal  court,  whatever  had  been  regis- 
tered in  public  documents  or  books,  everybody  could  put  faith 
in.  One  could  rely  upon  the  apparent  right  which  a  juristic 
act,  formally  correct  and  publicly  performed,  created;  even  when 
that  api^irent  right  was  not  in  accord  with  the  positive  law.  This 
legitimizing  power  of  an  apparent  right  ("  Rechtsschein  ", — 
record  title,  color  of  title),  the  so-called  principle  of  "  public- 
ity ",^  was  in  its  beginning  nothing  more  than  a  particular  appli- 
cation of  the  typic  formalism  peculiar  to  the  old  law.  But  while 
this  was  otherwise  broken  down  and  discarded  within  the  medieval 
age  itself,  the  principle  of  publicity  displayed  an  enduring  creative 
power  in  the  development  of  the  law.  The  medieval  law  built 
upon  it  its  entire  law  of  things,  and  thereby  found  it  possible, 
among  other  things,  to  develop  what  is  known  as  the  "  j)ublic 
faith  "  of  land  registers  and  certain  forms  of  commercial  paper ; 
thus  laying  the  foundation  of  the  modern  law  of  those  subjects. 
We  have  here  an  important  example  of  the  truth  that  the  medieval 
law  was  capable,  in  itself,  of  transforming  the  rigid  routinism  of  its 
primitive  period,  and  of  developing  out  of  it  freer  legal  institutes 
suited  to  the  increasingly  complex  conditions  of  social  life.  It 
shows  that  the  medieval  German,  too,  was  not  without  an  en- 
dowment of  juristic  technic ,  although,  indeed,  he  could  not  yet 
raise  himself  to  an  objective  standpoint. 

Upon  the  principle  of  publicity  rested  also  the  institute  of  tacit- 
preclusion  or  acquiescent-prescription  ("  Verschweigung  ")  - —  the 
closing  of  a  demandant's  mouth  by  his  own  prior  silence,  wherein 
the  medieval  law  made  allowance  in  striking  manner  for  the  neces- 
sity of  regulating  the  influence  of  time  upon  legal  relations. 
W^hoever  desired  to  impugn  any  state  of  things  as  unlawful  was 
required  to  do  so  during  a  definite  period  after  he  had  received  ac- 
tual notice ;  otherwise  he  closed  his  own  mouth  by  his  prior  silence 
and  could  no  longer  avail  himself  of  his  right.     It  was  very  com- 

'  Cf.  //.  Meyer,  "Das  Pul)lizitatsprinzip  im  deutschen  biirfjerlichen 
Recht",  in  O.  Fischer,  " Abhandlunfjen",  XVIII,  no.  2  (1909);  Naen- 
drupp,  "  Rechtselieinforsehunf^en.  Heft  1:  BefjrifT  des  Roclilscdieins 
und  Aufgabc  der  Rechtscheinl'orschung"  (1900).  But  soo  also  Ilellmann, 
in  Krit.  Vj.  (}.  R.  W.  (3d  son.  XIV,  1912),  117  d  ser/.  And  also,  most 
recently,  against  exaggerations  of  the  theory  of  ostensible  right  ("  Recht- 
schein"),  Muller-Erzbach,  " Gefahrdungshaftung  und  Gefahrtragung" 
(1912),  297  el  seq. 

^  Immerwahr,  "Die  Ver.schweigiing  in  deutschen  Rocht",  in  Gierke, 
"Untersuchungen",  No.  48   (1895). 

14 


Chap.  I]  GENERAL  TRAITS  [§  1 

mon  for  the  judge  to  issue  a  peace-ban,  by  which  he  required  all 
persons  having  causes  of  action  to  make  their  just  demands  either 
immediately  (being  residents  of  the  jurisdiction)  or  (being  non- 
residents) within  a  certain  period.  As  a  rule  the  demand  had  to 
be  made,  in  the  phrase  of  the  medieval  sources,  within  "  a  year 
and  a  day."  By  this  was  originally  understood  a  year  plus  one 
day,  in  the  literal  sense  of  the  phrase.  Later,  however,  men 
interpreted  it  usually  as  a  term  of  one  year  plus  six  weeks,  or  of  a 
year,  six  weeks,  and  three  days,  —  that  is  they  added  to  the 
year  the  interval  between  two  ordinary  popular  courts  for  "  causae 
maiores  "  ("  echte  Dinge  "),  and  often  also  the  three  day  term 
of  the  court  itself.^  The  running  of  the  period  was  prevented 
only  by  actual  necessity  ("  echte  Not  ") ;  that  is,  by  definite 
typical  reasons  for  failure  to  satisfy  the  requirement :  according 
to  the  Sachsenspiegel,  by  imprisonment,  sickness,  service  of  God 
without  the  country  (as  on  the  Crusade),  service  of  the  Empire.- 
*'  Verschweiguiig  "  was  of  special  importance  in  the  field  of  the 
law  of  things,  where  it  led  to  the  development  of  the  institute 
of  legitimate  ("  rechte  ",  —  i.e.  legally  sanctioned)  seisin  {infra, 
§  28) .  Other  examples  of  its  application  we  find  in  the  preclusion 
of  claims  of  inheritance  {infra,  §  103),  of  rights  over  found  articles 
(infra,  §  60,  III),  of  lordships  and  of  personal  liberty  (infra,  §  13). 
The  effect  attributed  to  the  so-called  limit  of  legal  memory  implies 
an  extension  of  the  principle  of  acquiescent-prescription.  To  rec- 
ognize a  condition  which  had  existed  time  out  of  mind  as  sanctified 
by  user,  and  to  accord  it  the  protection  of  the  law,  was  consistent 
with  the  general  viewpoint  of  the  old  law.  Here  again  it  was  the 
appearance  of  right  that  possessed  legitimizing  power,  although 
the  origin  of  the  existing  state  of  things  w^as  obscured  by  time. 
(5)  And  finally,  it  must  be  pointed  out  that  a  conception  of 
private,  as  contrasted  with  public,  law  —  such  as  was  already 
stamped,  even  though  imperfectly,  upon  the  Roman  law,  and 
has  been  developed  in  modern  legal  theory  —  remained  wholly 
alien  to  the  INIiddle  Ages.  There  was  no  separation  of  private 
from  public  Jaw;  each  ran  o\'er  into  the  other.  The  reason  for 
this  lay  partly  in  a  conception,  peculiar  to  Germanic  races,  of 

'  Fockemn-Andrenr,  "Die  Frist  \'on  Jahr  und  Tag  und  ihre  Wirkunpj 
in  den  Niederlanden",  Z^.  R.  G.,  XIV  (1893),  75-111.  Guterbock,  "Der 
Prozess  Hoinricdis  des  liOweu",  Exkurs  III  :  "Die  Bedeutung  von  'Jahr 
und  Tag'"  (1909).  Punlschart,  "Ziir  urspriingliohen  Redeutung  von 
'Jahr  und  Tag'",  in  7?.  R.  G.,  XXXII  (1911),  328-330.  Brnnner  in 
"Festgabe  der  Berliner  juristischen  Fakultat  fiir  Gierke"  (1910),  44  et 
seq.  and  "Grundziige"  (Sth  ed.),  200. 

'^Arthur  Schmidt,  "Echte  Not"  (1888). 

15 


§  1]  INTRODUCTION  [Chap.  I 

the  relation  between  the  State  and  the  folkmen ;  whicli  was 
treated  far  less  from  the  standpoint  of  authority  and  subjection 
than  from  that  of  common  and  equal  rights.  It  lay,  further,  in 
the  political,  economic,  and  social  conditions  of  the  jNIiddle  Ages ; 
which  in  conjunction  with  that  conception,  mutually  limiting  it 
and  limited  by  it,  made  impossible  the  rise  of  a  State  power,  either 
in  the  sense  of  the  classical  imperium  or  in  that  of  modern  po- 
litical theory,  —  and  thus  pre\ented  the  appearance  of  a  corre- 
sponding public  law.  Authority  and  competence  under  public 
law  assumed  forms  of  private  law,  as  e.g.  in  feudal  relations  and 
in  the  regalities;  rights  under  private  law  were  clothed  with 
public  powers,  —  as  e.g.  those  of  a  landowner  over  his  free  ten- 
ants ("  Hintersassen  ") ;  capacity  for  rights  and  for  juristic  acts 
under  the  private  law  was  very  closely  connected  with  the  posi- 
tion a  man  occupied  in  the  political  frame-work  of  society ;  and 
so  on.  This  fact,  however,  does  not  hinder  one  from  considering 
apart  the  private-law  constituents  of  the  medieval  legal  order; 
although  one  must  be  mindful  of  their  connections  with  the 
public  law. 

§  2.  The  Reception.^  —  (I)  The  Roman  Law  maintained  itself  as 
a  living  law  throughout  the  Middle  Ages,  as  the  law  of  the  church 
and  as  the  personal  law  of  the  Roman  population  even  of  Ger- 
manic lands  :  it  also  reacted  from  an  early  period,  as  above  noticed 
(p.  8),  upon  the  national  legal  systems  of  those  Germanic  racial 
branches  which  came  in  contact  with  the  world  whose  past  was 
one  of  Roman  culture.  The  folk-laws  already  show  traces .  of 
this  influence ;  indeed  in  the  Frankish  empire  of  the  700  s  and 
800  s  a  universal  authority  was  already  ascribed,  at  times,  to  the 
Roman  law ;  and  the  Carolingian  kings  declared  binding,  as  that 
of  their  predecessors,  the  legislation  of  the  Roman  emperors. 
One  could  not,  however,  speak  as  yet  of  any  considerable  alien 
influence  in  Germanic  lands  within  the  field  of  private  law.  If  a 
few  technical  names  and  expressions  of  Roman  legal  terminology 
found  their  way  into  documents  and  legal  records,  they  were 
nothing  more  than  embellishments  drawn  from  an  erudition  for 
the  most  part  quite  incomprehensible  to  its  borrowers. 

At  the  turn  of  the  1000  s  and  1100  s,  however,  the  Roman  law  be- 

^  V.  Below,  "Die  Ursachen  der  Rezeption  des  Romischeu  Rechts  in 
Deutschland"  (1905,  —  Vol.  19  of  tho  "Historisoho  Ribliothok"  pub. 
by  the  editors  of  tiio  Hist.  Z.).  C/.  Hlbhd  in  Krit.  Vj.  (!.  \{.  W.,  XLVII 
(3d  ser.  XI,  1907),  1-49.  See  also  Litten,  "Roiiiischcs  Ueclit  und  Pan- 
dekten-Recht"  (1907) ;  Vinogradoff,  "Roman  Law  in  Mediaeval  Europe" 
(1909). 

16 


Chap.  I]  GENEEAL  TRAITS  [§  2 

gan  anew  a  conquest  of  Europe,  and  with  it  was  joined  the  Canon 
law.  A  new  epoch  in  European  legal  history  began.  No  land,  save 
only  at  first  the  Scandinavian  North,  proved  capable  of  resisting 
this  triumphant  progress.  Yet  in  no  land  other  than  Germany  did 
this  invasion  of  the  foreign  law  lead  to  a  catastrophe  for  the  native 
law.  In  Germany  alone  there  resulted  a  "  Reception  "  of  the 
alien  law  in  a  technical  sense  of  the  word,  and  thereby  a  break  in 
legal  development  the  worst  of  whose  consequences  were  corrected 
only  after  400  years. 

It  follows  that  it  would  be  a  misconception  if  one  were  to  con- 
ceive of  the  Reception  merely  as  a  partial  expression  of  that  resur- 
rection of  antiquity,  that  "  return  to  the  ancients  ",  which  remade 
toward  the  end  of  the  Middle  Ages  the  whole  intellectual  life 
of  Europe,  and  culminated  in  the  Renascence  and  the  Reforma- 
tion. In  England,  for  example,  where  there  was  much  more 
nearly  an  adoption  of  Roman  legal  ideas  than  in  Germany,  the 
national  law  was  spared  a  "  Reception  "  ;  an  early  acquaintance 
with  the  "  Corpus  Juris  Civilis  "  seems  rather,  "  in  the  manner  of 
a  prophylactic  inoculation,  to  have  rendered  it  immune  to  a  fatal 
infection."  ^  The  causes  of  the  Reception  must  therefore  have 
lain  in  the  peculiar  conditions  of  Germany. 

(II)  Circumstances  that  prepared  the  Way  for  the  Reception. 
—  Among  those  circumstances  mention  must  always  be  made  in 
the  first  place  of  the  opinion  that  the  medieval  Empire  was  a 
continuation  of  the  Roman  world  dominion,  an  opinion  that  de- 
veloped in  the  period  of  the  Hohenstaufen  into  a  firmly  estab- 
lished dogma.  In  that  way,  by  reasoning  peculiar  to  the  iMiddle 
Ages  and  wholly  unhistorical  and  uncritical,  men  reached  the 
undisputed  practical  conclusion  that  the  "  Corpus  Juris  "  of 
Justinian  was  entitled,  as  "  imperial  law  ",  to  claim  direct  validity 
in  their  own  age. 

To  this  evaluation  was  due  the  increasing  ardor  that  men 
showed  in  the  study  of  foreign,  —  yet  according  to  that  view, 
after  all  not  foreign,  —  law ;  first  at  the  Italian,  and  then,  from 
the  1400  s  onward,  also  at  the  German  universities,  in  all  of  which 
there  was  accorded  to  the  Roman  law,  by  about  1500,  a  recognized 
and  permanent  place  in  the  curriculum.  To  this  was  added  the 
circumstance  that  the  Canon  law  which  was  enforced  in  the 
ecclesiastical  courts  could  be  thoroughly  understood  and  properly 

'  Brunner,  in  his  Berlin  reetoral  address,  "Der  Anteil  des  deutschen 
Rechtes  an  der  Entwieklung  der  Universitaten "  (1896);  "Grundziige" 
(5th  ed.),  264. 

17 


§  2]  INTRODUCTION  [Chap.  I 

applied  only  with  the  aid  of  the  Roman  law.  In  a  wealth  of  popu- 
lar legal  writings,  most  of  them  exi)ressly  prepared  for  ecclesiastics 
and  the  needs  of  the  ecclesiastical  courts,  the  task  was  assumed 
of  disseminating  a  knowledge  of  the  Roman-Canon  law.  The 
advance  of  Roman  legal  studies  was  not,  however,  it  would  seem, 
the  consequence  of  an  already  increased  application  of  the  Roman 
law  in  the  lay  courts;  for  generally  speaking,  the  German  law 
remained  intact  down  to  the  end  of  the  1400  s.  The  spread  of 
scholarly  knowledge  of  the  Roman  system  was  in  advance  of  its 
practical  application.  The  assumption  would  also  be  unjustifiable 
that  the  preference  shown  in  the  service  of  princes  to  those  par- 
ticular jurists  who  were  trained  in  the  Roman  system  was  due 
to  the  fact  that  they  served  such  princes  as  handy  tools  in  tlieir 
personal  absolutistic  ambitions ;  for  these  endeavors  belonged 
only  to  a  later  time.  Certainly,  rulers  did  highly  appreciate 
such  jurists,  and  employed  them  in  ever  increasing  numbers  upon 
their  administrative  boards;  not  from  political  motives,  however, 
but  on  account  of  the  general  superiority  of  scientifically  trained 
officials  as  compared  with  unschooled  laymen ;  and  in  this  pref- 
erence they  made  practically  no  distinction  between  tiie  doctors 
of  the  Canon  and  those  of  the  Roman  law.  The  truth  is  rather 
that  the  increased  scholarly  zeal  of  this  last  period  of  the  ^Middle 
Ages  was  taking  hold  of  laymen,  and  impelling  them  to  a  study 
of  the  Roman  law,  because  the  study  of  this  was  not  forbidden  to 
them,  as  it  was  to  the  clergy.  Once  they  had  attained  to  influ- 
ential administrative  and  judicial  positions,  thanks  to  the  culture 
thus  acquired,  it  was  of  course  inevitable  that  they  should  influ- 
ence legislation  and  legal  decisions  in  a  Romanistic  sense.  Yet 
even  that  could  not  have  led  to  an  almost  unqualified  conquest 
by  the  Roman  law  had  not  other  causes  even  more  urgent  co- 
operated. 

(Ill)  The  decisive  causes  of  the  Reception  lay  in  the  condition 
of  the  German  law  itself.  The  reproach  some  have  brought  against 
the  German  law,  that  it  was  incapable  of  an  ind(^i)eii(lent  evolu- 
tion to  meet  altered  social  and  economic  relations  and  the 
growing  need  of  legal  technic ;  and  that  men  therefore  adopted  the 
Roman  law  for  its  inherent  advantages,  for  its  substantive  supe- 
riority to  the  German,  is  indeed  indefensible.  For  it  is  contra- 
dicted by  the  fact  that  precisely  in  those  places  where  there  was 
the  greatest  advance  in  economic  and  juridical  conditions,  — 
namely  in  the  great  city  communities,  —  men  clung  far  more 
tenaciously  to  the  native  law  than  they  did  in  the  open  country. 

18 


Chap.  I]  GENERAL   TRAITS  -  [§  2 

And  in  Switzerland  the  legal  development  of  modern  times  has  been 
completed  upon  a  purely  Germanic  basis,  yet  the  alleged  imper- 
fection of  the  German  law  has  never  become  evident. 

Two  other  facts,  however,  were  of  decisive  influence :  the  dis- 
integrated character  of  the  German  law,  and  its  lack  of  scientific 
cultivation.  Both  facts  were  very  intimately  connected  with  the 
unhappy  political  history  of  Germany.  The  weakness  of  the 
central  power,  steadily  increasing  through  centuries,  made  im- 
possible the  gro\\'th  in  Germany  of  a  powerful  supreme  court,  such 
as  the  "  Curia  Regis  "  of  England  and  France,  which  might  have 
given  a  unitary  tendency  to  the  decisions  of  the  lower  courts ; 
it  made  equally  impossible  any  radical  legislative  activity  for 
the  purpose  of  a  coherent  development  of  the  law.  And  the  lack 
of  such  courts  of  superior  instance  in  which  the  native  law  was 
practised  prevented  any  professional  devotion  to  it,  and  still 
more  any  scientific  instruction  in  it.  "  If  we  except  the  single 
feat  of  that  gifted  man  Eike  von  Repgow,  —  which,  though  indeed 
not  a  theoretical  work  was  a  juristic  work  in  the  truest  sense,  — 
we  have  nothing  in  the  whole  medieval  literature  of  legal  sources 
that  can  even  remotely  be  compared  with  the  contemporary 
achievements  of  Italian,  French,  and  English  jurists."  ^  The 
significance  of  this  lack  of  any  legal  science  is  shown  especially 
clearly  in  the  example  of  Italy  and  England .  Just  as  there  developed 
at  Pavia,  in  the  school  there  established  by  royal  jurists  for  the 
study  of  Lombard  law,  a  national  jurisprudence  that  served  as 
model  for  the  Romanistic  jurisprudence  of  the  Glossators  by  which 
it  was  followed,  so  in  England,  as  early  as  the  Middle  Ages, 
there  was  developed  at  the  law  schools  of  the  Inns  of  Court  a 
scholarly  study  of  the  national  law  which  gave  this  a 
greater  power  of  resistance  against  alien  influences.  In  Ger- 
many, likewise,  it  was  in  the  lands  of  the  Saxon  law,  which 
found  literary  treatment  upon  the  basis  of  the  Sachsenspiegel  and 
a  rich  development  in  the  practice  of  influential  city  "  over- 
courts  "  ("  Oberhofe  "),2  that  the  native  law  succeeded  best  in 
maintaining  itself  against  the  foreign  law^  Inasmuch,  however, 
as  nothing  similar  was  possible  in  the  Empire  as  a  whole, 
the  acceptance  of  the  alien  law  necessarily  and  truly  promised 
a  release  from  insufferable  abuses.  Men  received  in  it  a  coherent 
law,  fixed  in  writing  and  therefore  certain  ;  a  law,  moreover, 
whose  text  had  been  worked  over  in  detail  in  an  abundant  scien- 

'  Sohm  in  Z.  Priv.  Off.  R.,  I  (1874),  252. 

2  (Compare  Vol.  1  of  this  Series,  p.  313.     Transl.) 

19 


§  2]  INTRODUCTION  [Chap.  I 

tific  literature,  and  fitted  for  practical  use.  This  was  the  reason 
why  it  found  such  rapid  entry.  It  was  not  the  classic  Roman  law 
taught  by  the  Glossators,  and  in  many  ways  useless  for  another 
time,  but  the  modernized  Roman  law  of  the  Post-Glossators,  the 
Italian  law,  that  crossed  the  Alps.^  Defects  in  the  external  form 
of  the  German  law,  and  superiorities  in  the  form  of  the  Roman  law, 
were  therefore  the  decisive  causes  of  the  Reception.  Certainly 
the  Roman  law  was  superior  to  the  German  in  many  of  its  rules, 
especially  in  the  law  of  obligations ;  certainly,  too,  it  made  pos- 
sible juristic  training  to  a  degree  far  beyond  that  possible  in  the  un- 
learned German  law.  But  by  no  means  everything  "  received  "  was 
good,  or  better  than  the  native  law :  on  the  contrary,  many  excel- 
lent ideas  of  the  latter  were  supplanted  only  to  be  brought  again 
to  light  much  later.  Its  greatest  service,  too,  —  a  schooling  of 
men  in  legal  thinking  —  was  really  not  rendered  until  in  the  1800  s ; 
and  perhaps  it  might  have  rendered  this  without  any  Reception. 

(I\ )  The  Reception  was  realized  in  i)art  directly,  through 
the  entry  of  the  Roman  system  into  the  administration  of  justice 
as  a  common  law;  in  part  indirectly,  through  the  local  legisla- 
tion of  the  1400  s  and  1500  s  under  Romanistic  influence. 

(1)  In  the  process  by  which  the  administration  of  justice  was 
subjected  to  the  Roman  principles  the  reorganization  of  the 
Imperial  Chamber  of  Justice  in  1495  was  of  primary  importance. 
In  this  supreme  court,  which  had  evolved  out  of  the  royal  council, 
doctors  of  law  had  long  been  employed  ;  and  they  naturally  based 
their  judgments  upon  the  alien  law.  This  custom  was  now  made 
a  statutory  rule.  The  Ordinance  of  1495  relative  to  the  Chamber 
obligated  both  judges  and  assessors,  —  of  whom  half  should  be 
men  learned  in  the  law,  —  to  decide  "  according  to  the  common 
law  of  the  Empire,  and,  further,  according  to  such  righteous, 
honest,  and  suflFerable  ordinances,  statutes,  and  customs  of  the 
principalities,  lordships,  and  courts,  as  shall  be  brought  before 
it  [by  litigants]."  "  The  common  law  of  the  Empire  "  meant 
nothing  else  than  the  law  of  the  "  Corpus  Juris  Civilis."  This 
was  thereby  raised  to  the  rank  of  a  directly  obligatory  source  of 
law.  The  regular  decisions  of  the  Territorial  courts  quickly 
accommodated  themselves  to  the  supreme  court.  And  as  for  those 
Territories  that  were  exempt  from  the  influence  of  the  Imperial 
Chamber  through  "  privilegia  de  non  appellando "  (e.g.  the 
electoral  principalities),  the  courts  of  the  Territorial  sovereigns 

*  Gierke,  "Privatrecht",  I,  14. 
20 


Chap.  I]  GENERAL   TRAITS  [§  2 

were  themselves  soon  functioning  in  the  same  manner  (as  e.g.  in 
BerHn).  And  although  many  courts  (as  e.g.  the  IMunicipal 
"Oberhofe  ")  resisted  the  Romanization  of  judicial  law,  thus  forced 
from  above,  their  resistance  was  energetically  and  triumphantly 
combated  by  the  Territorial  rulers,  supported  by  judgments  of 
the  Imperial  Chamber  and  by  counsels  of  university  faculties  of 
law,  who  were  likewise  champions  of  the  Roman  system.  Only 
a  very  few  courts  succeeded  in  permanently  escaping  from  the 
influence  of  the  Imperial  Chamber.  Such  were  those  of  Liibeck 
and  Hamburg,  where  the  land  law,  being  excluded  from  the  appel- 
late system,  remained  German.  That  Switzerland  and  Schleswig 
were  not  wholly  unaffected  by  the  Reception  was  due  simply 
to  the  fact  that  the  competence  of  the  Imperial  Chamber  of 
Justice  never  extended  to  those  lands. 

(2)  When  the  Roman  law  thus  became,  as  a  common  law,  the 
supreme  rule  in  the  decisions  of  the  courts,  what  was  really  in- 
volved was  an  adoption  of  its  rules  realized  through  the  medium 
of  custom,  and  supported  by  the  practice  of  the  Imperial  Cham- 
ber of  Justice,  It  attained  obligatory  force  through  legislation 
in  the  Territorial  legal  systems  ("  Landrechte  ")  and  the  "  refor- 
mations "  of  town  law  which  were  issued  from  the  mid  1400  s 
onward  for  the  purpose  of  replacing,  within  the  limited  area  of  a 
Territory  or  a  city,  the  complex  and  uncertain  native  local  law  by 
a  "  set"  ("gesetzes")  law,  unitary  and  written.  The  more  jurists 
took  part  in  these  legislative  activities,  the  more  Romanistic 
was  the  result.  Only  where  there  were  already  older  legal  records 
fit  for  use  was  the  fate  of  the  German  law  better,  yet  even  then 
this  advantage  of  position  was  often  lost  through  the  folly  of 
the  Romanizing  practice  of  the  courts. 

The  result  was  that  the  Reception  of  the  Roman  law  went  on 
with  surprising  rapidity  and  ease,  almost  ever\"where  in  Germany. 
Its  triumph  was  secure  within  a  few  decades.  Here  and  there, 
indeed,  a  hostile  voice  was  raised  in  angry  diatribes  against  the 
"  doctors  ",  —  the  "  Bartolistae  ",  as  Hutten  called  them.  The 
most  of  such  complaints  against  the  jurists  were  due,  however, 
to  resentment  of  the  rural  nobility  at  their  increasing  number  in 
the  higher  official  places,  and  had  nothing  to  do  with  the  foreign 
law.  For  that  matter,  if  we  except  the  great  imperial  cities, 
which  (above  all  Liibeck)  defended  with  determination  their  na- 
tive law,  the  mass  of  the  nation,  of  all  classes,  probably  nowhere 
realized  what  a  revolution  was  progressing  in  intellectual  life, 
and  what  was  at  stake  for  German  law.     Even  among  jurists, 

21 


§2]  INTRODUCTION  [Chap.  I 

at  first,  indifference  predominated  over  hostility  to  the  native 
usages.  Astonisliing  as  the  fact  may  seem  to  us,  it  warns  us  not 
to  overestimate  the  mutual  dependence  of  law  and  nationality. 

§  3.  German  Private  Law  after  the  Reception.  —  The  character 
of  German  private  law  was  fundamentally  altered  by  the  Re- 
ception. 

(I)  In  the  first  place,  as  regards  legal  unity,  the  hopes  men  had 
entertained  of  realizing  this  through  the  Reception  were  speedily 
and  bitterly  disapj)()intcd.  True,  men  did  now  possess  for  the 
first  time,  in  the  alien  lawbooks  they  had  received,  a  common 
law  of  authority  throughout  Germany ;  and  unquestionably 
this  was  no  slight  im})rovement  over  earlier  conditions,  —  only 
this  new  common  law  was  not  identical  with  any  of  the  native 
systems,  and  therefore  increased,  instead  of  lessening,  the  number 
of  sources  men  had  to  reckon  with.  It  is  also  true  that  the 
theory  came  to  prevail  of  a  Reception  "  in  complexu  ",  —  i.e.  an 
assumption  that  all  the  glosses  of  the  lawbooks  received  were 
also  to  be  applied  as  rules  of  positive  law.  In  spite  of  that,  how- 
ever, the  attempt  could  not  seriously  be  made  to  base  legal  deci- 
sions exclusively  ui)on  the  "  Corpus  Juris."  For  countless  legal 
relations  it  contained  no  rules :  such  must  be  decided,  as  before, 
according  to  the  native  law.  That  raised,  however,  the  difficult 
preliminary  question,  whether  or  not  it  was  mandatory  so  to  do ; 
and  this  preliminary  question  contributed  not  a  little  toward 
increasing  the  uncertainty  of  the  law.  Further,  there  was  at- 
tributed to  the  common  law  the  rank  of  a  subsidiary  law  only; 
i.e.  wherever  native  rules  of  law,  whether  customary  or  enacted, 
were  in  actual  force,  they  took  precedence  of  the  alien  law.  The 
extremely  unequal  development  which  German  law  had  attained 
in  different  regions  also  contributed  materially  to  the  patchwork 
character  of  legal  practice.  What  was  decided  in  one  place 
by  native  rules  had  to  be  abandoned  in  another  to  the  foreign  law. 
Even  when  agreement  had  been  reached  respecting  the  princii)le 
in  accord  with  which  the  various  legal  sources  were  to  be  applied, 
the  above-mentioned  preliminary  question  too  often  remained 
a  source  of  doubts.  The  rule,  namely,  became  gradually  recog- 
nizcfl  that  the  more  special  should  take  precedence  of  the  more 
general  law.  Accorrlingly,  in  cases  where  all  was  not  left  to  the 
caprice  of  the  parties,  the  local  customs  and  statutes  were  to  be 
resorted  to  in  the  first  place,  then  the  more  comprehensive  of  the 
j)roviTK-ial  and  city  statutory  systems,  and  only  in  the  last  place 
the  common  law,  —  the  weakest  legal  source,  lying  back  of  all 

22 


Chap.  I]  GENEBAL  TRAITS  [§  3 

others.  Or,  as  men  were  wont  to  express  the  rule  in  a  legal  prov- 
erb :  "  Willkiir  bricht  Stadtrecht,  Stadtrecht  bricht  Landrecht, 
Landrecht  bricht  gemein  Recht  "  ("  by-law  breaks  town  law, 
town  law  breaks  provincial  law,  and  provincial  law  breaks  com- 
mon law").  In  this  predominance  —  theoretical,  at  least- — 
of  local  and  special  law,  the  persistent  decentralization  of 
German  law  found  its  clearest  expression.  At  the  same  time 
the  common  law,  despite  its  merely  subsidiary  force,  united  all 
German  lands  into  a  certain,  albeit  loose,  community  of  law, 
through  the  uniform  administration  of  justice  and  legal  theory  to 
which  it  gave  rise.  In  the  tangle  of  German  legal  organization 
the  science  of  the  common  law  was  thus  the  only  real  refuge  of 
legal  practice  and  development. 

Even  this  bond,  however,  lost  in  time  the  power  to  hold  to- 
gether all  parts  of  Germany.  The  perdurance  side  by  side  of 
countless  legal  sources,  if  reconcilable,  because  of  necessity  with 
the  loose  framework  of  the  Empire,  was  a  condition  of  things 
that  could  not  in  the  long  run  be  maintained  in  the  modern  States 
into  which  the  most  powerful  of  the  imperial  Territories  developed 
following  the  1600  s.  That  which  could  not  be  accomplished  for 
the  whole  Empire,  either  through  the  Reception  or  otherwise, 
was  realized,  at  least  for  some  portions  of  the  Empire,  by  the 
great  codifications  effected  after  painful  labors  in  the  1700  s  and 
1800  s.^  The  Prussian  "  Allgemeines  Landrecht  "  (General  or 
Territorial  Code,  1794),  the  Austrian  Civil  Code  (1811),  the  Saxon 
Civil  Code  (1863),  as  well  as  the  French  Code  Civil  (1804)  — 
which  attained  authority  over  great  regions  in  Germany  —  and 
its  revision  for  Baden  in  the  Baden  Territorial  Code  (1809), 
created  in  their  respective  jurisdictions  a  unitary  law.  The  Prus- 
sian Code  was,  indeed,  designed  to  have  merely  subsidiary  au- 
thority, in  place  of  the  common  law,  intact  primary  authority  being 
still  preserved  to  the  local  and  provincial  laws,  which  were  to 
be  collected  and  recorded.  But  the  centralizing  forces  in  the 
Prussian  State  were  stronger  than  the  intent  of  the  legislator : 
with  few  exceptions  the  provincial  laws  dried  up,  as  it  were,  and 
the  Code  was  treated  almost  ever\^^here  as  the  exclusive  source 


'  On  the  history  of  codification  cf.  Stolzel,  "Carl  Ooeliel^  Svarez" 
(1885);  and  "  Brandenburg- Preussons  Rechtsverwaltung  und  I^eclits- 
verfassung"  (2  vols.  1888).  Also  "Festschrift  zur  Jahrhiindertfeier  des 
[osterreichischen]  allgemeinen  biirfiferlichen  Ciesetzbiu'hs"  (2  vols.  1911); 
"  T.ie  Code  Civil.  Livre  dn  Centenaire.  publie  par  la  Society  d'Etudes 
Legislatives"  (1904);  Andreas,  "Die  Einfiihrung  des  Code  Napoleon  in 
Baden".  Z^.  R.  G.,  XXXI  (1911),  182-234. 

23 


§  3]  INTRODUCTION  [Chap.  I 

of  law.  Tlie  codes  that  followed  assumed  this  authority  from 
the  beginning.  In  so  doing  they  broke  with  the  principle  of  the 
common  law  that  special  law  should  take  precedence  of  more 
general  law.  Supreme  authority  was  thenceforth  attributed  to 
the  general  law  of  the  State ;  indeetl,  often  no  other  law  was 
recognized.  But  great  as  the  advance  was  that  codification 
brouglit  about  in  these  States,  it  meant  new  and  heavy  loss  to 
the  legal  unity  of  Germany.  For  in  wholly  abolishing  the 
common  law,  —  to  which  the  earlier  Bavarian  Code  of  1756 
had  left  its  subsidiary  authority,  —  the  regions  of  code  law 
abandoned  the  community  of  the  common  law,  and  became 
wholly  independent  legal  provinces.  The  harm  resulting  from 
this  separation  was  borne  principally  by  these  States  themselves, 
for  as  a  result  of  their  losing  connection  with  the  jurisprudence 
of  the  common  law,  their  legal  development  fell  into  a  state  of 
torpor,  for  which  the  lego-political  benefits  of  the  unitary  law 
thus  attained  offered  no  adequate  compensation. 

Xot  until  the  establishment  of  the  present  German  Empire 
were  those  conditions  realized  which  made  it  possible  to  extend 
legal  unity  throughout  Germany.  The  relative  rapidity  with 
which  that  great  task  was  carried  through  and  the  goal  achieved 
which  had  so  often  and  so  fervently  been  striven  for  since  the 
days  of  Emperor  Maximilian,  and  particularly  since  the  Wars 
of  Independence,  gave  proof  that  the  chief  reason  why  preceding 
centuries  had  felt  no  "  call  to  legislation  "  ("  Beruf  zur  Gesetzge- 
bung  ")  lay  solely  in  the  unhappy  political  conditions  of  Germany. 
During  the  rule  of  the  North  German  Confederation  a  national 
law,  uniform  for  all  the  federated  States,  was  successfully  estab- 
lished for  the  most  important  matters  of  commercial  law  by  the 
German  Bills  of  Exchange  Act  of  1848  and  a  general  German 
Commercial  Code  of  1861 ;  and  since  then  the  legislation  of  the 
Empire,  which  rests  upon  authority  ^  expressly  granted  in  the 
Constitution,  has  created  through  numerous  separate  statutes 
and  through  the  crowning  work  of  the  Civil  Code  of  August  18, 
189G,  a  common  German  private  law,  which,  as  imperial  law, 
unlike  the  old  common  law  "  breaks  "  all  State  law,  in  accord 
with  a  principle  adopted  in  the  imperial  constitution  ^  and  repeated 
in  the  Ordinance  of  Promulgation  ("  Einfiihrungsgesetz  ")  regu- 
lating the  Code's  adoption.'    True,  the  after  effects  of  the  old 

*  Imperial  Constitution,  Art.  4,  and  imperial  statute  of  Dec.  20,  1873. 

2  Imperial  Constitution,  Art.  2. 

3  BGB,  EG,  Arts.  3,  55. 

24 


Chap.  I]  GENERAL  TRAITS  [§  3 

inrooted  tendency  to  particularism  have  been  so  far  felt  that 
there  is  still  reserved  to  the  States,  by  the  Ordinance  of  Promulga- 
tion, the  power  to  legislate  upon  a  not  inconsiderable  number  of 
matters,  particularly  those  in  any  way  connected  with  public 
law.  The  Articles  (55-152)  of  the  Ordinance  here  referred  to 
have  been  justly  characterized,  with  reference  to  German  legal 
unity,  as  "  a  list  of  dead  and  missing."  Happily,  however,  these 
reservations  are  not  very  important  in  comparison  with  the 
great  body  of  law  unitarily  regulated ;  and  in  a  common  legisla- 
tion, and  above  all  in  the  centralized  administration  of  justice  as- 
sured through  the  imperial  court,  a  firm  foundation  has  been  laid 
for  the  preservation  and  further  extension  of  German  legal  unity. 

Switzerland,  too,  has  now  unified  its  private  law  by  a  Civil 
Code  of  December  10,  1907.  This  remarkable  statute,  for  the 
most  part  the  work  of  Eugen  Huber,  draws  heavily  upon  the  Ger- 
man and  the  French  civil  codes,  but  is  based  primarily  upon  the 
native  Germanic  law.  Inasmuch  as  this  was  never  affected,  as 
has  been  seen,  by  the  Reception, .  but  retained  its  fresh  native 
character,  the  Swiss  Civil  Code  is  "the  most  Germanic  of  all  codi- 
fications of  Germanic  civil  law  " ;  it  has  been  possible  to  say 
of  it  that  it  is  like  an  improved  edition  of  the  German  Civil  Code.^ 

The  present  law  of  Germany  is  a  general  system  of  private  law. 
Like  the  old  racial  law  of  the  Germanic  and  Frankish  time  its 
authority  is  equal  over  all  members  of  the  legal  community.  In 
this,  too,  there  lay  a  victory  of  the  forces  that  worked  for  legal 
unity.  For  although  the  originally  unitary  racial  law  split  up 
in  the  medieval  age  into  separate  systems  of  town  and  Territorial 
law,  and  peculiar  law  was  developed  for  the  feudal,  servitary, 
and  manorial  divisions  of  medieval  society  (supra,  p.  3),  these 
legal  growths  really  first  attained  a  sharply  exclusive  character 
in  the  second  half  of  the  Middle  Ages  and  later,  through  their 
transformation  into  true  laws  of  status,  —  the  law  of  distinct 
estates  based  upon  birth  or  profession.  They  maintained  their 
validity  in  the  empire  and  in  the  imperial  Territories  until  the  dis- 
appearance of  the  old  social  order.  The  Prussian  "Landrecht" 
still  knew  a  special  law  for  the  estates  of  nobles,  townspeople, 
and  peasants,  of  civil  officials,  military  officers,  etc.  But  since 
the  principle  of  the  civil  equality  of  all  members  of  the  State 
has  been  established  in  Germany,  special  laws  of  status  have 
disappeared.    Only  the  law  for  the   higher  nobility  has    been 

1  V.  Voltelini,  in  the  Allg.  ost.  G.  Z.,  LXI  (1910),  37. 
25 


§  3]  INTRODUCTION  [Chap.  I 

niaintainod,  —  an  anachroiiisiu  no  longer  befitting  the  present 
day.  This  was  spareil  also  by  the  Introductory  Act  of  the 
Ci\il  Code  (infra,  §  13).  On  the  other  hand,  though  the 
modern  law  still  enforces  peculiar  rules  for  certain  professions,  — • 
as  e.g.  commercial  law  for  merchants,  an  industrial  law  for  indus- 
trials, etc.,  —  and  regulates  in  a  special  manner  certain  kinds  of 
property,  —  as  e.g.  family  fideicommissa  and  property  subject  to 
the  peculiar  claims  of  single  heirs,  —  these  provisions  are  no  longer 
to  be  regarded  as  laws  of  privilege  such  as  were  laws  of  status. 
What  is  here  involved  is  rather  the  special  regulation  of  certain 
legal  relations,  —  as  in  the  case  of  feudal,  servitary,  and  manorial 
law,  —  which,  however,  remain  subject  to  the  general  rules  of 
the  pri\-atc  law,  and  are  open  to  everybody, 

(II)  The  content  and  the  form  of  the  law,  too,  took  on  a  wholly 
altered  cliaracter. 

(1)  The  most  direct  and  most  important  result  of  the  Recep- 
tion was,  of  course,  that  German  private  law  ceased  to  be  a  national 
law.  To  the  formal  contrast  of  distinct  jurisdictions  that 
caused  the  patch-work  of  the  German  legal  chart,  there  was 
thenceforth  added  a  substantial  antithesis  in  the  diverse  historical 
origin  of  individual  legal  rules,  —  the  antithesis  between  the 
Roman  and  German  elements  of  the  law  in  force  within  Germany. 
The  common  law  was  predominantly,  indeed  almost  exclusively, 
foreign  law.  Because  of  the  almost  total  sterility  of  imperial 
legislation  in  the  INIiddle  Ages,  as  also  in  the  modern  period 
down  to  the  dissolution  of  the  Holy  Roman  Empire,  there  existed 
practically  no  statutory  law  binding  for  all  Germany ;  and  under 
the  North  German  Confederation  the  creation  of  such  a  law  was 
made  impossible  b}'  constitutional  provisions.  It  was,  indeed, 
possible  to  maintain  in  theory  the  existence  of  a  common  German 
customary  law,  but  to  translate  the  theory  into  practice  was 
more  difficult.  For  in  the  Middle  Ages  German  customary  law 
was  already  predominantly  local  in  character  (supra,  p.  5),  and 
in  the  modern  period  it  did  not  cease  to  be  so.  As  oj)j)osed  to 
it  every  advantage  lay  on  the  side  of  the  foreign  law ;  for  while 
this  could  formally  claim  merely  a  similar  customary  authority, 
by  way  of  compensation  it  was  easy  of  access  to  the  judge, 
thanks  to  its  printed  form.  The  native  law  survived  in  the 
main  in  particularistic  legal  records  alone;  though  there,  one 
must  admit,  often  with  astonisln'ng  tenacity.  Only  in  the  lands 
of  the  Saxon  law  was  there  recognized  a  local,  so-called  Saxon, 
common  law.     This  was  the  old  racial  law,  further  developed  upon 

26 


Chap.  I]  GENERAL  TRAITS  [§  3 

the  basis  of  the  Sachsenspiegel  and  its  glosses,  which  maintained 
a  primacy  over  the  general  common  law;  a  fact  that  was 
"  of  incalculable  value  in  the  preservation  of  the  native  law."  ^ 
As  many  of  the  Territorial  systems  and  town -law  "  refor- 
mations" gave  the  German  law  an  effective  protection,  so 
also  the  modern  codes  have  in  many  ways  accorded  a  new 
recognition  to  Germanic  legal  ideas :  the  Saxon  Civil  Code 
least  of  all,  the  Austrian  more,^  and  most  of  all  the  Prussian 
"Landrecht "  and,  especially,  the  Napoleonic  Code  Civil,  which  last 
has  been  justly  called  the  most  Germanic  of  the  older  codes.  The 
German  law  lived  on  in  provincial  statutes  and  customs,  for 
the  most  part  wholly  misunderstood,  until  down  into  the  1800  s. 
It  was  badly  mistreated  by  the  Romanistic  jurisprudence ;  on 
the  other  hand,  this  was  often  obliged,  in  interpreting  the  alien 
sources,  —  primarily  under  the  influence  of  the  law  of  nature  — 
to  give  effect,  albeit  unknowingly  and  unintentionally,  to  many 
ideas  of  German  law. 

Thus  the  private  law  that  prevailed  in  Germany  after  the 
Reception  assumed  in  many  respects  a  peculiar  composite  char- 
acter ;  it  was  neither  Roman  law  nor  German,  but  a  product  of 
both,  sometimes  happy,  but  more  often  an  abortion.  In  order 
to  identify  correctly  the  contributions  of  the  one  and  the  other  to 
the  elements  of  the  positive  law,  and  to  create  from  them  a 
modern,  internally  coherent  system  fitted  to  the  present  day, 
there  was  indispensable  an  insight  into  the  historical  development 
of  both  systems  which  was  attained  only  in  the  1800  s  through 
the  Historical  School.  This  task  has  been  since  accomplished, 
and  one  may  well  note  with  satisfaction  that  the  native  law  has 
not  come  off  badly  in  the  process. 

(2)  Although  the  Reception  was  directly  responsible  for  a 
weakening  of  the  national  character  of  the  German  law  the  conse- 
quences of  which  were  long  to  be  felt,  the  transforynaiion  of  the 
German  law  from  a  popular  and  unlearned  into  a  learned  law  would 
have  resulted  without  it.  For  the  German  law,  as  well  as  for 
that  of  the  other  civilized  nations  of  Europe,  there  had  come,  at 
the  latest  at  the  close  of  the  Middle  Ages,  that  inevitable  moment 
for  every  legal  system  when,  to  use  Savigny's  expression,  it  ac- 
quires a  scientific  character  and  is  left  the  consciousness  of 
jurists,  by  whom  the  people  are  henceforth  represented  in  their 

^Gierke,  "Privatrecht",  I,  19. 

2  C/.  Hugelmann,  "Deutsche  Reehtsgedauken  im  allgemeinen  burger- 
lichen  Gesetzbuche",  in  Allg.  ost.  G.  Z.,  LXII  (1911),  172-177. 

27 


§  3]  INTRODUCTION  [Chap.  I 

old  functions  as  law-makers.^  But  it  was  truly  a  misfortune  for 
German  law  that  there  existed  in  Germany,  in  the  beginning,  only 
"an  imspeakably  narrow-minded  class  of  jurists."  ^  They  de- 
spised the  native  law,  or  haughtily  ignored  it  as  com])ared  with 
the  revered  "  ratio  scripta  "  of  the  Roman  law.  With  an  utter 
lack  of  understanding  they  forced  the  living  institutes  of  the  Ger- 
man law,  wherever  these  had  maintained  themselves  in  positive 
authority,  into  the  categories  of  the  Roman  law.  Under  their 
pedantic  and  incompetent  hands  the  German  law,  once  so  full 
of  vitality,  became  an  inflexible  and  esoteric  mass  of  learning, 
full  of  subtleties.  It  was  lost  to,  —  it  even  became  in  many 
respects  plainly  opposed  to,  —  the  popular  consciousness ;  and 
we  have  not  yet  succeeded  in  closing  the  lamentable  breach  be- 
tween them,  an  evil  heritage  from  the  Reception.  Measured 
against  this,  it  was  of  little  moment  that  the  law  now  completely 
lost  in  its  professional  cultivation  the  "  sensuous  "  character 
already  partially  cast  off  in  the  Middle  Ages.  A  few  symbols 
maintained  themselves,  e.g.  the  handclasp;  but  they  were  color- 
less in  comparison  with  the  old  ones,  and  in  part  they  were  dragged 
along  without  being  in  the  least  understood,  and  were  sadly  muti- 
lated. The  original  rich  formalism  of  legal  acts  often  gave  way 
to  complete  informality ;  often,  too,  it  was  replaced  by  writing 
or  by  judicial  or  notarial  attestation.  In  the  land-law  alone 
men  held  fast  to  the  old  requirements  of  publicity  in  juristic  acts ; 
developing  independently  and  happily  in  the  elaborate  system 
of  land  registry  ("  Grundbuchwesen  ")  the  formalistic  elements 
of  the  old  native  law,  in  preference  to  the  principles  of  the  alien 
system.  One  must  grant  that  all  these  losses  were  inevitable  ;  one 
must  also  admit  that  it  was  unusually  late  in  Germany  before  capac- 
ity for  abstract  juristic  thought,  juristic  construction  and  interpre- 
tation, attained  the  level  of  an  art, — the  "  ars  juris."  German 
jurists  came  to  rival  the  great  Frenchmen  and  Dutclmien  only 
at  a  late  day.  This  too  may  have  been  an  unfortunate  conse- 
quence of  the  Reception,  which  deprived  legal  science  of  a  sound 
native  basis.  The  result  was  strikingly  evidenced  in  a  juristic 
German  ridiculously  embellished  with  foreign  words.  Painful 
efforts  proved  necessary  to  acquire  again  a  worthy  terminology, 
comparable  in  force  and  neatness  with  the  best  legal  monuments 
of  the  Middle  Ages. 

If.  Snvigny,  "Vom  Beruf  unserer  Zeit  fur  Gesetzgebung  und  Rechts- 
wissenschaff'  (1S14,  3d  od.  1840),  12. 
^  Brunncr,  "Grundziige"  (5th  ed.).  265. 

28 


Chap.  I]  GENERAL  TRAITS  [§  3 

(III)    Finally,  the  relation    between  customary  and  statutory 

law  also  was  altered  in  the  modern  period.  This,  too,  was  a 
development  inevitably  resulting  from  altered  conditions,  espe- 
cially from  political  transformations ;  but  it  was  also  materially 
influenced  by  the  Reception. 

(1)  Lost  to  the  consciousness  of  the  ordinary  man,  the  law  could 
no  longer  find  its  main  source  in  the  practice  of  a  customary  law, 
but  only  in  consciously  adjusted  enactment.  The  modern  State, 
in  particular,  laid  claim  in  increasing  measure  to  the  legal  regula- 
tion of  all  relations  of  life  as  a  task  exclusively  belonging  to  it. 
Thus,  law  that  was  enacted  or  "  set "  ("  gesetzt  "),  and  what  is 
more  set  by  the  State,  —  statute  ("  Gesetz  ")  in  its  true  sense,  — ■ 
became  by  far  the  most  important  and  influential  source  of  law. 
However,  legislative  power  belonged,  as  had  already  been  the 
case  in  the  last  part  of  the  Middle  Ages,  not  only  to  the  Empire, 
but  to  every  lesser  political  community  ("  Staatsgewalt  "). 

Relatively  to  legislation,  autonomous  enactment  sensibly 
diminished,  but  without  wholly  disappearing.  The  autonomy 
of  town  and  rural  communes  was,  it  is  true,  almost  completely 
broken  by  the  provincial  princes,  who  sought  to  assure  to  the 
State  a  monopoly  of  law-making.  Only  the  sea  towns  of  Rostock 
and  Wismar  have  been  able  to  preserve  down  to  the  present  day 
rights  of  enactment  of  the  old  type.  Of  course,  the  right  of 
the  communes,  conceded  to  them  by  the  State,  in  its  communal 
ordinances,  to  establish  legal  rules  by  local  statutes,  etc.,  may 
be  called  "  autonomy  " ;  but  the  State  marked  off  the  limits  of 
this  authority.  In  this  sense  the  churches,  and  likewise  the 
other  corporate  associations  ("  Korperschaften  ")  of  public  law, 
possessed  large  powers  of  enactment.  The  privilege  accorded 
to  them  was,  indeed,  slight  in  comparison  with  the  autonomy  of 
the  old  estates  of  the  realm,  universities,  craft  gilds,  etc.  The 
autonomy  of  the  high  nobility  has  survived  till  today  as  a  remnant 
of  the  old  law  of  status  (infra,  §  13). 

(2)  As  regards  the  customary  law,  the  full-grown  theory  of  the 
Roman-Canon  law  was  adopted  in  Germany.  This  Avas  not  in 
itself  unfavorable  to  the  customary  law;  nor  can  it,  therefore, 
be  alleged  that  the  German  jurists  of  the  age  of  the  Reception 
were  animated  by  any  particular  hostility  to  the  customs.^  In 
principle  they  recognized  these  as  a  source  of  law  equal  in  rank 

1  Brie,  "Die  Stellung  der  deutschen  Reehtsgelehrten  der  Rezeptions- 
zeit  zum  Gewohnheitsrocht",  in  "Breslauer  Festgabe  fiir  F.  Dalm",  I 
(1905),  131-1G4. 

29 


§  3]  INTRODUCTION  [Chap.  I 

with  public  ami  private  enactments  ("  Gesetze  "  and  "  Statu- 
ten  ")  ;  indeed,  even  as  superior  to  tliese  and  therefore  capable 
of  nullifying  them,  provided  they  satisfied  the  requirements 
adopted  from  the  alien  theory.  As  such  there  were  demanded  : 
a  time-honoretl,  frequent,  and  uniform  practice,  resting  upon 
jural  conviction,  —  that  is,  recognized  as  binding,  —  and  accom- 
panied by  an  "  opinio  necessitatis  " ;  a  collective  will  manifested 
through  such  practice ;  and  a  rational  content.  That  there  was 
in  all  this  nothing  inherently  hostile,  —  not  even  in  the  require- 
ment of  a  rational  content, — to  customary  law  in  general,  and 
the  native  customs  in  particular,  is  evidenced  by  the  fact  that  the 
same  requisite  was  set  up  by  the  legal  theory  of  the  time  for  public 
and  private  enactments.  But  in  truth  this  attitude  was  little 
help  to  the  German  customary  law.  For  though  the  jurists 
assumed  at  first  a  friendly  attitude  to  the  customary  law  as  such, 
they  felt  therefore  a  repugnance  the  more  decided  to  every  partic- 
ularistic legal  system :  a  repugnance  which,  as  Landsberg  has 
aptly  remarked,  has  animated  German  jurists  of  every  age,  and 
has  steadily  opposed  the  particularistic  bent  of  the  nation.^  And 
unfortunately,  almost  all  German  customary  law  was  (as  has 
been  remarked)  of  a  particularistic  character.  Therefore,  when 
it  was  demanded  that  every  local  law  should  be  strictly  interpreted, 
and  proved  to  the  judge  by  the  party  pleading  it,  it  was  precisely 
the  German  customs  that  were  thereby  primarily  afifected.  The 
exceptions  to  this  rule,  too,  that  were  permitted  in  the  case  of 
notorious  —  i.e.  written  —  law,  profited  the  native  customary 
law  only  to  a  slight  extent,  because  it  was  usually  unwritten.  On 
the  other  hand,  the  written  common  law  was  —  as  notorious  law 
—  not  required  to  be  proved ;  and  when  to  this  rule  there  was 
added  the  theory  of  a  reception  of  the  Roman  system  "  in  com- 
plexu  "  (.nipra,  p.  22),  he  who  appealed  to  principles  of  the  Jus- 
tinian law  was  conceded  a  "  fundatam  intentionem  ",  i.e.  he  did 
not  need  to  prove  the  authority  of  the  rule.  The  prejudice  that 
later  prevailed  against  customary  law  as  such  is  doubtless  to  be 
ex-jjlained  by  the  endeavors  of  the  States  completely  to  shut  off, 
by  legislation,  all  sources  of  legal  variance  and  uncertainty,  in  order 
to  prevent  paths  painfully  cleared  from  being  choked  again  by 
weeds.2  To  this  end  all  customs  not  adopted  in  public  statutes 
were  denied  authority.  The  modern  codes,  above  all  the  Prus- 
sian "  Landreclit ",  also  assumed  this  attitude  of  hostility  to  the 

'  Slintziiifl-Lanflsbcrg ,   "Crcsohifhtp",   III,    1,  55. 
'Gerbcr,  "System"  (17th  ed.),  29. 

30 


Chap.  I]  GENERAL  TRAITS  [§  3 

customary  law.  The  German  Commercial  Code  was  the  first 
to  break  with  this  tradition  :  it  declared  (Art.  1)  that  effect  should 
be  given  after  its  own  provisions  to  the  usages  of  trade,  in 
preference  to  those  of  the  general  private  law,  thereby  endowing 
the  customary  law  of  merchants  with  a  general  supplementary, 
though  not  indeed  amendatory,  authority.  The  codes  that  are 
today  in  force,  both  the  Civil  and  the  Commercial,  and  their 
respective  Ordinances  of  Promulgation,  contain  no  provisions 
whatever  respecting  the  relative  rank  of  legal  sources.  The 
possibility  of  free  development  has  thus  been  restored  to  the  cus- 
tomary law;  but  particularistic  custom  will  no  longer  be  able 
to  modify  imperial  law.  The  Swiss  Civil  Code  expressly  imposes 
upon  judges  the  duty  to  decide  according  to  the  customary  law 
when  no  rule  can  be  derived  from  public  statute. 

(3)  As  a  consequence  of  the  fact  that  the  law  had  become 
a  learned  law,  cultivated  exclusively  by  jurists,  practitioners, 
and  theorists,  there  was  placed  among  the  sources  of  the  law, 
beside  the  statutory  and  the  customary  law,  a  law  of  courts  and 
treatise-writers  ("  Juristenrecht") ;  distinguishing,  within  this,  the 
"  judge-made  "  law  that  was  a  product  of  practice  and  the  con- 
clusions of  theoretical  jurisprudence.  This  postulation  was,  how- 
ever, erroneous.  The  administration  of  the  law  by  the  courts,  espe- 
cially the  highest,  can,  it  is  true,  influence  in  a  very  decisive  manner 
the  further  growth  of  the  law ;  but  the  authority  of  judicial  decisions 
is  never  binding.  When  expression  is  given  in  legal  practice  to  a 
general  sense  of  what  the  law  is,  and  a  further  development  of  the 
law  is  thereby  initiated,  we  have  here  only  a  special  aspect  of  the 
production  of  law  by  custom.  And  the  same  is  true  of  legal 
theory.  The  "  communis  opinio  doctorum  "  is  not  a  source 
of  law,  but  a  view  so  represented  may  be  raised  to  the  rank 
of  positive  law  through  statute  or  through  custom.  The 
peculiar  turn  given  by  Beseler  ^  to  the  doctrine  of  "  Juristen- 
recht  ",  by  his  division  of  customary  law  into  folk-law  and 
"  Juristenrecht  ",  rested  upon  an  inadmissible  induction  of 
general  concepts  from  actual  legal  conditions  as  they  had  been 
shaped  in  Germany  by  the  Reception.  Beseler  placed  folk-law 
and  "  Juristenrecht  "  side  by  side  because  in  fact,  in  Germany, 
the  jurists  schooled  in  the  alien  law  impressed  their  signet  upon 
the  law's  development.  In  so  doing  he  failed  to  recognize  tliat 
when  German  jurists  innocently  treated  in  Romanistic  fashion 

•  "Volksrecht  und  Juristenrecht"  (1843). 
31 


§  3]  INTRODUCTION  [Chap.  I 

legal  relations  of  everyday  German  life,  though  they  thereby 
caused  infinite  damage  to  the  German  law,  making  out  of 
it  in  many  respects  a  mongrel  thing  of  Germanic  and  Roman 
breed,  the  result  was  the  same,  from  the  formalistic  view-point 
of  a  theory  of  legal  sources,  as  if  they  had  tlecided  according 
to  good  old  Germanic  law.  Their  "  Juristenrecht "  was,  in 
great  part,  nothing  other  than  the  "  folk-law  "  of  that  time. 
It  was  the  mystical  conception  "folk  "  of  the  Historical  School 
which  led  to  this  high  esteem  for  the  customary  law  sprung 
from  the  people,  and  to  this  contempt  for  so-called  "  Juristen- 
recht." But  anyway,  the  attempt,  in  practical  application  of 
this  theory,  to  apportion  the  institutes  of  customary  law  among 
these  two  assumedly  intlcpendent  sources  of  law,  was  predestined 
to  failure. 

§  4.    German  Private  Law  as  an  Independent  Science. 

(I)  Common  and  Regional  Law  before  1900.  —  Since  January  1, 
1900,  law  has  been  declared  in  German  courts,  —  if  we  disregard 
matters  reserved  to  the  legislation  of  the  several  States,  —  accord- 
ing to  the  Civil  Code  and  the  imperial  statutes  supplementary  to 
it.  With  it  German  legal  science  is  today  primarily  occupied ; 
at  the  universities  it  occupies  the  central  position  in  the  curric- 
ulum. There  is  a  German  private  law,  a  German  law  that  covers 
the  individual's  civic  life. 

Before  January  1,  1900,  such  a  law  had,  as  we  have  seen,  never 
existed  for  any  considerable  area.  Germany  was  split  up  into 
numerous  regions  of  special  law,  of  which  —  with  reference  to 
their  leading  legal  sources  and  the  mode  of  their  application  — 
more  than  one  hundred  and  twenty  could  be  counted  just  before 
the  Civil  Code  came  into  effect.^  In  the  regions  of  the  common 
law  the  "  Corpus  Juris  Civilis  "  was  in  force ;  exclusively  in  only 
a  very  few  districts,  but  generally  as  a  subsidiary  law  —  back 
of  various  local  statutes  and  bodies  of  customary  law,  Territorial 
codes,  and  town-laws ;  behind  the  Sachsenspiegel  and  the  common 
Saxon;  law  behind  the  Bavarian  "  Landrccht  "  of  1750;  and,  in 
Schleswig,  Fehmarn,  and  Helgoland,  l)cliin(l  the  Jutish  code 
("  jiitisch  Low  ").  Just  before  1900  about  sixteen  and  a  half 
million  Germans  were  living  under  the  common  law.  Beside 
this  there  were  the  regions  of  the  Prussian  "  Landrccht  "  with 
about  twenty-one,  of  the  French  and  Baden  law  with  about 
eight    and    a  half,   of   the  Saxon  Civil   Code  with   about  three 

*  CJ.  the  legal  map  in  Stnmmler's  "tlbungen  im  Inirgerliohen  Recht  fiir 
Anfanger",  I  (2d  ed.  1902),  and  the  explanations  th(>re  given. 

32 


Chap.  I]  GENERAL   TRAITS  [§  4 

and  a  half,  million  inhabitants.  These  codes  which  made 
the  administration  of  justice  in  their  respective  territories 
wholly  independent,  could  not  under  such  conditions  of  mutual 
isolation  become  the  basis,  at  least  for  a  long  time,  of  a  local  legal 
science  of  merit  equal  to  that  of  the  common  law.  The  impor- 
tance of  codified  law  for  legal  study,  theriefore,  diminished.  Even 
at  the  Prussian,  Baden,  and  Saxon  universities  the  chief  emphasis 
was  put,  not  upon  the  courses  in  the  local  Prussian,  French,  Baden, 
or  Saxon  law,  but  upon  the  Pandects :  no  training  worthy  of 
mention  was  offered  to  the  law  student  in  the  locaLpositive  law. 

At  all  the  universities,  however,  there  was  given  a  supple- 
mentary dogmatic  course  in  German  private  law  along  with  that  on 
the  Pandects ;  and  in  legal  literature  German  private  law  was 
cultivated  as  an  independent  science  along  with  the  common  and 
the  particularistic  regional  law. 

Our  next  question  is,  how  was  this  possible,  and  what  signifi- 
cance was  attributed  to  such  "  German  "  private  law? 

(II)  The  Science  of  German  Private  Law,  and  its  Tasks  prior 
to  1900.^  A  common  private  law,  i.e.  a  law  proceeding  from  one 
source  and  binding  upon  all  regions  politically  united  in  the  Ger- 
man Empire,  did  not  exist,  or  existed  only  in  very  few  divisions 
of  the  law,  before  January  1,  1900.  But  of  course  there  had 
always  existed  a  German  private  law.  German  law  is  a  product 
of  the  German  people,  which  despite  its  political  disintegration 
has  nevertheless  always  constituted  a  national  unit.  German 
law  has  grown  up  upon  the  basis  of  common  mental  traits.  The 
same  is  true  of  German  law  as  of  the  German  language.  As  the 
beginnings  of  German  law  go  back  to  racial  varieties  of  law  so 
do  those  of  the  German  language  to  various  dialects,  and  a  long 
time  passed  before  a  common  German  literary  language  gained 
dominance  over  the  dialects  ;  nevertheless  there  existed  from  earli- 
est times  a  German  speech,  and  Jacob  Grimm  could  with  right 
give  the  title  "  German  Grammar  "  to  his  celebrated  work  in 
which  he  derived  the  history  of  that  tongue's  development  from 
colloquial  dialectic  forms.  The  spirit  of  the  law,  like  that 
of  the  language,  was  everywhere  the  same.  Prankish,  Saxon, 
Thuringian,  Swabian,  Bavarian,  and  Frisian  law  were  only  vari- 
ant forms  of  German  law. 


^  Stintzing-Landshero,  "Gesehiehte",  I-III,  1,  2  (1880-1910).  Gerber, 
"Das  wissensehaftlioho  Prinzip  des  gemeinen  deutseheii  Privatreehts " 
(1846).  Gierke,  "Die  historische  Reehtssehule  und  die  Germanisten " 
(Reetoral  Address,  1903). 

33 


§  4]  INTRODUCTION  [Chap.  I 

When  men  began,  however,  to  bu.sy  themselves  scientifieally  with 
Cierman  law,  they  were  as  yet  far  from  ready  for  the  reeognition 
of  this  fact.  Only  in  the  1800  s  did  the  Historical  School,  follow- 
ing the  course  marked  by  Montesquieu  and  Voltaire^  attain  to  a 
conscious  realization  of  it.  Men  sought,  therefore,  another  justi- 
fication for  their  labors.  As  has  been  remarked  (supra,  p.  25), 
ihe  Reception  had  by  no  means  displaced  all  native  law.  This 
maintained  itself  in  numerous  local  statutes  and  customary  sys- 
tems, influencing  the  practical  application  of  the  Roman  law 
in  the  courts,  and  therefore  also  its  scientific  treatment. 
When  there  arose  in  the  IGOO  s,  to  use  Stintzing's  phrase, 
though  not  as  yet  a  science  of  German  law^  at  least  a  German 
legal  science,  the  material  content  of  this,  in  so  far  as  private  law 
was  concerned,  was  based  upon  Roman  law  as  modified  by  the 
still  living  native  legal  sources.  It  was  therefore  designated  as 
"  usus  modernus  Pandectarum  ",  or  "  praxis  iuris  Romani  in  foro 
Germanico  ",  and  otherwise.  The  representatives  of  this  literature 
—  among  others  Carpzow,  Stryck,  Leyser,  Bolmier  —  recognized 
the  continued  authority  of  German  legal  principles  :  they  explained 
the  existing  positive  law  as  a  development  of  the  borrowed  Roman 
law  produced  under  their  influence,  through  the  medium  of  custom. 
In  this  respect  they  rose  far  above  the  purely  mechanical  ju\i;a- 
position  of  Roman  rules  and  surviving  Germanic  rules  that  had 
become  customary  in  the  1500  s,  —  for  such  Germanic  rules  had 
found,  of  course,  only  gradual  recognition  among  the  Romanists. 
But  only  when  Conring  had  destroyed  (1643)  the  fable  that 
the  Roman  law  was  introduced  by  a  capitulary  of  the  Emperor 
Lothair,  thus  making  possible  a  historical  understanding  of  Ger- 
man legal  conditions,  could  the  idea  gain  headway  that  in  those 
native  legal  rules  and  institutes  there  was  still  living  the  old  Ger- 
manic law ;  that  they  could  not,  therefore,  be  fused  with  the 
Pandect  law,  nor  explained  by  this ;  that  they  must  be  in\'esti- 
gated  as  independent  gro\\i;hs,  and  contrasted  as  an  independent 
system  with  the  foreign  law.  With  this  idea  men  undertook,  in  the 
first  place,  to  bring  together  all  available  materials  of  German 
law,  to  the  end  of  proving  that  there  existed,  —  as  Schilter  (1G32- 
1705),  the  leading  representative  of  these  endeavors,  put  it, — 
two  common  laws  in  Germany,  a  Roman  and  a  German ;  and  in 
order  to  develop  from  as  great  a  mass  as  possible  of  statutory 

1  Cf.  Kantorowicz,  "Volkspoist  und  historische  Ilecht3sehule",in  Hist. 
Z.,  CVIII  (3d  ser.  XII,  1912),  29r>-:i25. 

^  Slinlzing-Landsberg,  "Geschichte",  II,  24. 

34 


Chap.  I]  GENERAL   TRAITS  [§  4 

German  systems  the  principles  common  to  all.  While  this 
scientific  movement  led  by  Schilter,  in  conjunction  also  with  cer- 
tain endeavors  of  the  Humanists,  was  primarily  concerned  with 
an  accumulation  of  material  (it  reached  its  culmination  later  in 
the  work  of  Heineccius,  1G81-1741),  no  less  a  man  than  Christian 
Thomasius  (1655-1728)  undertook  to  reduce  this  material  to 
unity,  to  comprehend  it  in  its  historical  evolution,  and,  —  as  an 
independent  branch  of  science,  created  one  might  say  by  him- 
self,—  to  introduce  it  into  university  courses  and  work  it  over 
in  scientific  literature.  True,  in  so  doing  he  followed,  like  others, 
the  arrangement  of  the  Institutes  and  Pandects ;  but,  contrary 
to  the  practice  of  his  predecessors,  he  made  German,  not  Roman, 
legal  principles  his  point  of  departure ;  and  his  avowed  object 
was  to  prove  the  limited  applicability  of  those  alien  law-books. 
That  which  Thomasius  and  his  pupil  Beyer  began,  Piitter,  and 
after  him  Selchow,  continued.  Putter  (1725-1807)  developed  as  a 
scientific  program  the  idea  that  the  problem  was  to  find,  by  a 
comparison  of  all  particularistic  rules,  the  common  legal  ideas 
underlying  them  all ;  and  Selchow  (1732-1795)  elaborated  this 
plan  in  a  system  that  rested  upon  a  hitherto  unheard  of  wealth 
of  sources.  But  while  Thomasius  had  merely  naively  fitted  the 
individual  rules  of  German  law  together  into  a  system,  the 
two  great  Gottingen  scholars  set  themselves  thus  early  the  problem 
which  was  destined  thenceforth  to  torment  the  scientific  conscience 
of  every  Germanist :  the  question,  namely,  whether  the  system 
thus  derived  from  German  legal  materials  enjoyed  the  status  of 
actual  positive  law.  Putter  and  Selchow  both  answered  this 
question,  with  critical  moderation,  in  the  negative,  claiming  for 
the  system  they  established  merely  universal  theoretical  authority 
as  a  doctrinal  abstraction  ;  for  w^hich  reason  Selchow  also  declared 
necessary  an  exhaustive  and  painstaking  cultivation  of  the  various 
particularistic  Territorial  systems.  The  same  question  was 
answered  even  more  decisively  in  the  opposite  sense  by  Runde 
(1741-1807),  whose  "  Principles  of  German  Common  Private 
Law"  acquired  a  dominant  reputation  about  the  turn  of  the  1700  s 
and  1800  s.  He  admitted  that  the  mere  coincidence  of  many 
single  provisions  did  not  suffice  to  establish  the  actual  authority 
of  the  principles  therefrom  deduced;  he  derived  these,  instead, 
from  what  he  called  "  the  nature  of  things  "  :  whatever  followed 
from  the  "  nature  "  of  a  given  German  institute  had  in  his  theory 
the  force  of  directly  authoritative  law. 
This  bold  but  dangerous  attempt  to  rescue  for  German  private 

35 


§  4]  INTRODUCTION  [Chap,  1 

law  the  character  of  actual  law  ("  Positivitiit  "  —  positivism),  — 
which  as  Landsbcrg  says/  unqualifiedly  and  openly  set  up  as 
ruler  the  law  of  nature  in  place  of  the  legislator,  —  collapsed  when 
K.  F.  Eichhorn  a})plied  the  principles  of  the  Historical  School 
also  to  the  German  law,  thereby  opening  the  way  for  a  correct 
understanding  of  its  historical  development  and  its  true  condi- 
tion.2  In  his  "German  Political  and  Legal  History"  (1808-1822, 
5th  ed.  1843-1844)  and  in  his  "  Introduction  to  German  Private 
Law  "  (1823,  5th  ed.  1845)  Eichhorn  deduced  from  the  history 
of  German  law  the  proof  that  not  one  of  its  institutes  existed  in 
isolation ;  that  all  of  them  were  controlled  by  certain  cardinal 
principles,  which  only  historical  research  could  discover  and  reduce 
to  consistency.  In  Eichhorn 's  works  there  was  incarnated  for 
German  law  that  epoch-making  advance  in  the  conception  of 
intellectual  matters  which  was  introduced  by  the  romantic  move- 
ment :  the  awakening  of  the  historical  sense.  Jacob  Grimm 
unveiled  to  us  in  his  "  Legal  Antiquities  "  the  old  German  and 
Germanic  law  in  its  original  primitive  form  ^ ;  Eichhorn  followed  it 
through  the  course  of  its  development,  and  taught  men  to  recog- 
nize in  its  latest  stage  the  result  of  all  its  earlier  stages.  In  this 
broad  and  grand  conception,  distinguished  equally  by  historical 
understanding  and  constructive  power,  and  beside  which  the 
views  of  even  his  greatest  predecessors  of  the  1700  s  lose  all  rela- 
tive importance,  lies  his  immortal  merit :  in  details  he  went  astray 
in  many  things,  and  especially  his  "  Introduction  "  was  soon 
obsolete.  But  he  had  laid  the  solid  basis  on  which  could  be 
gradually  erected  by  his  followers  of  the  1800  s,  though  often 
only  after  violent  conflict  with  the  champions  of  the  Romanist 
views,  the  science  of  an  independent  German  law,  ever  becoming 
more  nearly  equal  to  and  worthy  of  its  Ilomanistic  fellow.^  A 
long  series  of  other  general  treatises,  complemented  and  carried 
deeper  by  many  important  monographic  researches,  followed  his 
"  Introduction."  Of  these  unquestionably  the  most  important 
was  the  "  System  of  the  Common  German  Private  Law  "  of 
Beseler  (1847-55,  4th  ed.  1885),  whose  chief  merit,  in  Gierke's 

^  Stiritzing-Landsherg, '' Qesohichte",   III,    1,  4ri2. 

2  Cf.  with  this  Frcii.sdorjf,  "  Das  Wicdcrerstehon  (l(>s  deutschen  Rechts", 
in  Z-.  R.  O.,  XXIX  (1008),  1-7S;  Iliihncr,  "K.  F.  Eiohhorn  und  seine 
NjK-hf()lf,'<"r",  in  the  "  Festpabe  fiir  II.  iJrunner"  (1910).  S07-8;i8. 

'  Huhitir,  "Jar-oh  (Iriniin  und  das  deutsehe  Recht"   (18!).")). 

■•  The  dov('loi)ment  of  (iernianic  legal  seienee  in  the  1800  s  has  now  been 
treated  execllently  and  e.xliaustively  in  pt.  2  of  Vol.  li  of  Stinlzing-Lauds- 
berg's  "Gesehichte",  bv  the  latter.  Compare  with  it  the  elaborate 
references  of  Gierke  in  Z».  R.  G.,  XXXII  (1911),  341-3G5. 

36 


Chap.  I]  GENERAL  TRAITS  .  [§  4 

words/  lay  in  "  the  rediscovery  and  requickening  of  such  native 
legal  ideas  as  had  been  preserved."  As  Germanistic  scholar- 
ship turned  its  attention  in  increasing  measure  toward  these  ends 
it  became  a  chief  promoter  of  the  efforts  directed  toward  the 
establishment  of  German  legal  unity.  It  was  led  to  that  goal 
by  Gierke.  In  his  far-reaching  researches,  along  the  lines 
marked  out  by  Beseler,  in  the  Germanic  law  of  associations  he 
has  gained  new  victories  for  German  law,  has  conquered  for  this 
in  a  battle  ardently  contested  the  influence  due  it  in  the  recent 
codification  of  the  civil  law,  and  has  begun  to  assemble  in  his 
great  work  on  "  German  Private  Law  "  the  results  of  a  century 
of  researches. 

The  scholarly  cultivation  of  Germanic  private  law  has  therefore 
exercised  a  mighty  and  practical  influence  upon  the  most  recent 
German  legislation.  Eichhorn,  however,  and  the  majority  of  his 
followers,  insisted  upon  the  old  viewpoint  so  far  as  to  demand  that 
such  law  should  retain  the  character  of  a  positively  authorita- 
tive law.  This  was  the  view  of  Mittermaier,  Renaud,  Walter, 
Gengler,  Franken,  Gierke  and  —  these  with  an  approximation 
to  the  viewpoint  of  Rude  —  Reyscher  and  Beseler,  and  of  others. 
Only  a  minority  made  bold  to  defend  the  contrary  opinion,  as  had 
Albrecht  in  an  earlier  day,  and,  especially  uncompromisingly, 
Gerber,  followed  by  Stobbe  and  Roth.  For  the  champions  of 
positivism  in  this  controversy  respecting  what  they  called 
"  the  scientific  principles  of  German  private  law  "  the  first  and 
controlling  necessity  was  "  the  legitimation  of  their  science  as 
one  not  merely  historical  or  comparative  but  of  positive  law  " ;  ^ 
because  only  then  could  they  believe  it  of  equal  rank  with 
the  Pandect  common  law  —  which  was  the  issue  which,  though 
perhaps  unconsciously,  underlay  their  theory.  As  Landsberg 
very  justly  remarks,  a  self-deception  was  here  involved ;  but 
"  one  of  the  most  fruitful  of  all  self-deceptions,  and  one  that  was 
historically  nothing  less  than  necessary."  Without  it,  men 
would  not  have  had  for  any  length  of  time  the  courage  and  per- 
sistence necessary  for  the  study  of  the  German  sources. 

In  more  recent  years  some  have  sought  support  for  this  view 
in  the  existence  of  common  German  customs.  Even  the  Imperial 
Court  ("  Reichsgericht  ")  has  assumed  the  positivism  of  Ger- 
man private  law,  and  has  treated  its  principles  as  legal  rules 
("  Normen  "),  though  subject  to  judicial  review.     Nevertheless, 

1  "Privatrecht",  I,  92. 

*  Stintzing-Landsberg,  "Geschichte",  III,  1,  55. 

37 


36605^ 


§  4]  INTRODUCTION  [Chap.  I 

altlioiigh  there  have  doubtless  ahvays  existed  common  German 
customs,  they  were  never  so  numerous  that  a  scientific  system  could 
be  restricted  exclusively  to  them.  In  fact  the  systems  of 
the  Germanists  were  by  no  means  restricted  to  this  common 
customary  Germanic  law  of  native  origin  that  was  authoritative 
in  Germany ;  by  far  the  most  important  matters  dealt  with  by 
them  were  particularistic  statutes  and  customs.  Out  of  these 
they  pieced  together  as  full  a  system  as  possible,  but  of  course 
without  securing  in  this  an  internal  consistency  equal  to  that 
of  the  system  of  the  Roman  private  law.  The  system  thus 
created  could  not  possibly  be  regarded  in  the  same  light  as  one 
constructed  of  materials  of  a  common  positive  law,  as  was  that  of 
the  text  books  of  the  Pandect  law.  No  matter  what  rule  the 
Germanists  might  fit  into  their  system,  and  support  with  more  or 
less  numerous  precedents  from  the  range  of  sources  at  their  dis- 
posal, it  could  be  made  the  basis  of  judicial  decision,  unless  its 
authority  followed  from  general  custom,  oidy  when  its  special 
applicability  was  demonstrable.  That  its  place  was  important 
in  their  system  of  theory,  was  not  enough.  In  truth,  therefore, 
German  private  law  as  a  whole,  and  its  scholarly  culti\'ation, 
found  no  direct  practical  application  in  the  courts.  Its  impor- 
tance was  not,  however,  on  that  account  slight,  even  for  judicial 
doctrine;  for  this  German  private  law,  this  "  hypothetic  common 
law  "  as  men  were  wont  to  call  it,  was  an  indispensable  medium 
for  the  interpretation  of  tlic  individual  provisions  of  the  particu- 
laristic systems.  The  study  of  German  law  constituted  the 
necessary  introduction  to  the  study  of  the  local  laws,  whose  whole 
content  is  unintelligible  when  dissociated  from  the  general  develop- 
ment of  Germanic  legal  ideas ;  it  was  an  intlispensable  comple- 
ment to  the  science  of  the  Pandects. 

(Ill)  The  Task  today  of  German  Private  Law.  —  That  which 
before  1900  was  the  subject  of  strife  is  tcxhiy  settled.  It  is  no 
longer  necessary  to  argue,  in  an  endeavor  to  establish  the  positive 
character  of  German  private  law ;  for  it  is  only  in  the  few  cases 
in  which  matters  reserved  to  State  law  have  remained  without 
particularistic  statutory  regulation  that  it  still  remains  in  the 
same  uncertain  condition  as  of  old.  What  is  more,  it  has  acquired 
a  totally  different  status  through  the  recent  establishment  of  Ger- 
man legal  unity.  The  "civil"  law  ("biirgerliches", — the  law  that 
covers  the  several  and  mutual  rights  of  citizens)  is  the  positive 
private  law  of  today,  and  the  science  of  this  civil  law  is  today 
the    positive-dogmatic  science  of  a  common  law.     The  science 

38 


Chap.  I]  GENERAL    TRAITS  [§  4 

of  German  private  law  has  therefore  a  propaedeutic  task.  As  the 
system  of  the  pure  Roman  law  must  unlock  to  us  an  under- 
standing of  the  Roman  elements  in  our  positive  system,  so 
the  science  of  German  private  law  should  serve  as  an  introduction 
to  the  Germanic  elements  of  the  present  civil  law.  Disre- 
garding those  few  matters  respecting  which  one  can  still  speak 
of  a  common  private  law  in  the  old  sense,  the  existing  imperial 
and  State  law  does  not  fall  within  the  scope  of  that  science, 
which  only  leads  up  thereto,  as  the  end  of  the  national  legal  devel- 
opment. It  endeavors  to  picture  that  development  in  a  general 
way.  Heusler's  "  Institutions  of  German  Private  Law  "  present 
their  subject  at  the  period  of  its  flower  in  the  age  of  the  Law- 
Books,  thus  affording  as  it  were  a  cross-section  of  it  at  a  par- 
ticularly important  point  in  its  growth,  but  the  present  science  of 
German  private  law  follows  its  growth,  and  seeks  to  discover  at 
first  hand  in  the  sources  of  all  times  and  regions  in  which  it  was 
a  living  law  its  essential  nature.  Its  task  is  therefore  historical.^ 
Yet  it  is  not  on  that  account  less  important,  —  no,  not  even  less 
practical, — than  is  a  dogmatic  branch  of  instruction;  "for," 
as  Savigny  says,  "  a  legal  theory  that  does  not  rest  upon  the  basis 
of  thorough  historical  knowledge,  really  contributes  to  judicial 
practice  nothing  better  than  the  services  of  a  copyist."  ^ 

1  It  is  a  different  task  whieh  Gierke,  has  undertaken  to  perform  in  his 
"Deutsches  Privatrecht."  His  design  is  to  give  a  detailed  dogmatic 
presentation  of  the  existing  private  law  in  so  far  as  this  is  not  of  Romanis- 
tie  origin.  On  the  other  liand  his  "Outline"  in  Holtzendorff-Kohler's 
*'Encyklopadieder  Reehtswissenschaft"  (6th  ed.  I,  431-559)  has  substan- 
tially the  same  plan  as  that  indicated  in  the  text,  above ;  and  in  the 
Address  cited  on  p.  33  supra  (at  p.  33)  he  also  declares  that  academic 
Instruction  must  lead  the  student  up  to  the  existing  law  from  the  Roman 
as  well  as  from  Germanic  law.  Tlie  work  of  CI.  Frh.  v.  Scfurerin  cited 
on  p.  Uv  supra  is  a  purely  historical  presentation  of  the  development  of 
the  Germanic  private  law  in  systematic  order. 

2  "Vom  Beruf  unserer  Zeit",  78.  Compare  also  on  the  value  of  legal 
history  Ernst  Jacobi,  "Die  Ausbildung  der  Juristen"   (1912),  21  et  seq. 


39 


5] 


THE   LAW   OF   PERSONS 


[Book  I 


BOOK   I.    THE    LAW   OF    PERSONS 


Chapter  II 


NATURAL  PERSONS 


§  5.   Man  as  a  Holder  of  Rights. 
I.    Capacity  for  rights. 
II.    Capacity  for  legal  action. 
§  6.    Beginning     of     Capacity     for 
Rights. 
I.    Birth. 
II.    Adoption. 

III.  Proof  of  Birth. 

IV.  Viability. 

V.    Registry  of  Births. 
§  7.    Determination  of  Capacity  for 
Rights. 

I.    Natural  Death. 
II.    Destruction   of   Capacity 
for  Rights  during  Life. 

(1)  Social    outlawry    and 

outlawry  as  judicial 
process. 

(2)  Civil  death. 

(3)  Claustral  death. 

(4)  Enslavement. 

III.    Presumptive    Death   and 
Declarations  of  Death. 

(1)  The     older     German 

law. 

(2)  The     later     develop- 

ment. 

(A)  Periods. 

(B)  Procedure        by 

citation. 

(C)  The  return  of  a 

missing  person. 

(3)  Final  result. 

Youth. 

(1)  The  older  view. 

(A)  Age  periods. 

(B)  The  legal   status 
of  minors. 

(2)  Development       since 
the  Reception. 

II.    Declaration  of  Alajority. 

III.  Further  Age  Periods. 

IV.  Old  Age. 


Age. 
I. 


§  9.    Sex. 

I.  Legal  Position  of 
Women  among  the 
Primitive  Germans. 
II.  The  Medieval  Develop- 
ment. 
III.  The  Modern  Develop- 
ment. 

(1)  The    restoration    of 

sex    guardianship. 

(2)  Establishment        of 

legal  equality  be- 
tween the  sexes. 
§  10.   Health. 

I.    Physical  Health. 

(1)  The  older  law. 

(2)  The  modern  law. 
Mental  health. 

(1)  The  older  law. 

(2)  The  later  law. 
Prodigahty. 

(1)  The  older  law. 

(2)  The  later  law. 
Guardianship  of  Dipso- 
maniacs. 

§11.   The   Legal   Status  of  Aliens. 
"    The  Older  Law. 

(1)  The  right  of  enserf- 

ing  strangers. 

(2)  The  "landsassiatus." 

(3)  The  right  of  aubaine. 

(4)  The  inheritance  tax. 

(5)  The   tax  on  emigra^- 

tion. 

(6)  The  right  to  wreck- 

ag(>. 
II.   Modern  Development. 
§  12.   Religion. 

I.    Influence  of  Religion. 

(1)  In  the  Middle  Ages. 

(2)  In  modern  times. 
II.   Status  of  the  .Jews. 

(1)  In  the  Middle  Ages. 

(2)  In  modern  times. 


II. 


III. 


IV. 

The 
I. 


40 


Chap.  II] 


NATURAL   PERSONS 


[§5 


§  13.    Personal  Status. 

I .    Status  in  the  Legal  Sense. 
II.    The  Old  System  of  Social 
Estates. 

(1)  General        develop- 

ment       of        the 
system. 

(2)  Equality  of  birth. 
III.    The    Modern    Develop- 
ment. 

(1)  Abolition  of  estates. 

(2)  The  high  nobility. 

(A)  Origin   and   ex- 

tent. 

(B)  Autonomy. 

(C)  Equality  of 

birth. 


§  14.    Civil  Honor. 

I.    Personal   Honor   in   the 
Legal  Sense. 
II.    The  Older  Law. 

(1)  The  oldest  law. 

(2)  The  medieval  law. 

(A)  Outlawry      due 

to     dishonor- 
able acts. 

(B)  Outlawry  due  to 

personal  rela- 
tions or  social 
callings. 
III.   The    Modern    Develop- 
ment. 

(1)  The  Roman  law. 

(2)  Infamy. 

(.3)  The  present  day. 


§  5.  Man  as  the  Holder  of  Rights :  (I)  Capacity  for  Rights 
("  Rechtsfahigkeit  ")•  —  Our  present-day  simple  and  perspicuous 
arrangement  of  the  law  of  persons,  based  on  a  recognition  of  every 
human  being  as  a  holder  of  rights,  belongs  only  to  a  modern  period 
of  civilization.  German  law,  in  its  beginnings,  like  other  systems, 
by  no  means  treated  all  human  beings  as  legally  equal.  To  many 
classes  it  utterly  denied  all  legal  worth,  to  others  it  attributed 
only  a  partial  worth.  Only  gradually  was  this  primitive  view 
OA^ercome.  With  it  there  disappeared  contrasts  and  distinctions 
which  had  once  possessed  profound  significance  in  social  life,  above 
all  that  division  into  estates  which  characterized  the  medieval 
world.  Even  the  Christian  doctrine  of  the  moral  equality  of 
men  could  not  overcome  this,  —  albeit  far-seeing  spirits  like  Eike 
von  Repgow  recognized  the  legal  equality  of  all  men  as  a  tenet  of 
religion  and  morality,  justifying  this  by  the  fact  that  God  had 
created  man  in  his  image  and  had  given  salvation  to  all  equally 
tlii'ough  his  martyrdom.^ 

The  doctrine  of  the  Law  of  Nature  first  carried  this  view  to 
final  triumph.  Under  the  dominance  of  its  ideas  serfdom  was 
abolished,  the  feudal  class  divisions  of  society  into  estates  were 
swept  away,  and  the  legal  equality  of  different  religious  faiths 
established.  The  principle  of  the  equality  of  men  or  of  citizens, 
which  found  express  adoption  in  many  German  constitutions  in 
imitation  of  foreign  models,  was  established  without  restriction 
within  the  field  of  private  law :  every  man  is  a  person  in  the  legal 
sense,  a  subject  of  rights,  i.e.  "  capable  of  appearing  as  the  holder 
and  bearer  of  rights."  ^    Hence  the  modern  State,  in  Germany 


»  Ssp.  Ill,  42,  §  1. 


*  Heusler,  "Institutionen",  I,  100. 
41 


§5]  THE    LAW    OF    PERSONS  [BoOK  I 

as  elsewhere,  banished  shivery  utterly  from  its  soil,  and  in  the  more 
modern  codifications  it  was  explicitly  provided  that  foreign  slaves 
should  become  free  the  instant  they  should  set  foot  within 
the  boundaries  of  the  State.  The  limitations  in  this  respect  still 
retained  in  the  Prussian  "  Allgemeines  Landrecht "  of  1794 
(II.  5,  §§  19G-199)  were  abolished  by  a  special  statute  in  1857. 

In  this  case,  therefore,  development  came,  by  wa}'  of  exception, 
through  statutory  simplification.  Yet  it  should  not  be  forgotten 
that  this  realization  of  formal  legal  equality  accompanied  a 
steady  deepening  of  economic  contrasts,  and  that  culture, 
particularly,  has  in  most  recent  times  created  social  divisions 
which  at  least  equal  in  actual  importance  the  one-time  division 
between  the  free  and  the  unfree,  —  although  perhaps  this  new 
contrast  is  itself  about  to  lose  its  distinctness. 

(II)  Capacity  for  Legal  Action  ("ITandlungsfahigkeit").  —  In 
no  stage  of  its  development  can  tlie  legal  order  ignore  certain 
natural  differences  between  persons.  When  it  has  so  risen  to  a 
recognition  of  the  equality,  in  princij)le,  of  all  individuals,  it  must 
still  treat  minors  and  persons  in  tutelage  otherwise  than  adults. 
Formerly  sex  also  made  a  great  difference,  but  modern  times 
have  established  to  an  increasing  extent  the  equality  of  man  and 
woman  in  the  private  law.  Sickness,  also,  was  formerly  of  more 
widespread  legal  effect  than  it  is  to-day ;  though  law  must,  under 
all  circumstances,  take  into  consideration  diseased  disturbances 
of  mental  capacity. 

These  differences  in  natural  qualities  and  conditions  do  not 
destroy  legal  personality,  the  capacity  for  rights  ;  but  they  do  make 
more  difficult  any  independent  participation  in  legal  transactions, 
or  render  this  wholly  impossi])le :  they  restrict  or  wholly  do 
away  with  capacity  for  legal  action. 

§  G.  The  Beginning  of  Capacity  for  Rights.  (I)  Birth.  — 
Germanic  law  did  not,  generally  speaking,  recognize  capacity 
for  riglits  as  beginning  })efore  one's  appearance  as  an  indepeiKkMit 
human  being;  in  other  words,  not  until  after  birth.  Certain 
provisions,  however,  of  the  Prankish  law  ^  would  seem  to  indicate 
that  its  original  tlieory  attributed  to  the  child  in  womb  a  capacity 
for  rights  in  relation  to  property.  Later,  however,  German  law, 
like  other  systems,  contented  itself  with  holding  open  to  such 
a  child  the  acquisition  of  rights  that  would  inhere  in  it 
in  case  it  should  be  born  alive,  and  especially  the  acquisition  of  a 

^  Coulin,  "Dor  Nasoiturus.  Ein  Beitrag  zur  Lfliro  vom  Rechts- 
subjekt  im  frankischen  Recht",  in  Z^.  R.  G.,  XXXI  (1910),  131-137. 

42 


Chap.  II]  NATURAL   PERSONS  [§  6 

paternal  inheritance, — the  actual  distribution  being  delayed  until 
the  delivery  of  the  decedent's  pregnant  widow.  The  medieval 
law  thus  realized  an  idea  which  the  Roman  system  first  formu- 
lated in  principle ;  ^  and  though  the  modern  codes  adhered 
to  the  Roman  system,^  they  gave  heed  at  the  same  time  to 
native  legal  ideas.  We  find  in  them  also  the  provision  that  a 
curator  might  be  appointed  for  the  "  nasciturus  "  during  gesta- 
tion. On  the  other  hand  the  moment  of  birth  was  decisive 
of  its  social  status,  nationality,  and  membership  in  the  com- 
mune. However,  in  case  a  father  lost  his  nobility  during  his 
wife's  pregnancy,  many  legal  systems  did  not  let  this  affect  the 
child. 

(II)  Adoption.^  —  In  the  primitive  law,  unlike  that  of  today, 
the  natural  fact  of  birth  was  by  no  means  sufficient  basis  for  the  ac- 
quisition of  full  capacity  for  rights.  Whether  the  child  should  be 
adopted  into  the  family  of  its  father,  and  thereby  become  a  mem- 
ber of  the  legal  community,  depended,  moreover,  according  to 
Germanic  law,  upon  the  father's  will.  He  might  expose  it, 
i.e.  disown  it.  "  The  newborn  child  lies  on  the  floor  until  the 
father  declares  whether  he  will  or  will  not  let  it  live.  If  yes,  he 
takes  it  up,  or  orders  it  taken  up ;  it  seems  that  the  term  for 
midwife  (' Hebamme ')  comes  from  this  act  (' Aufheben ')."  ^ 
This  adoption  ("  Aufnahme  ",  "  taking  up  ")  was  the  visible  recog- 
nition of  the  child  by  its  father. 

The  right  of  exposure  was  gone  so  soon  as  the  first  acts  in  care 
of  the  child  had  been  done.  "  A  child  exposed  must  not  yet  have 
tasted  anything  whatever,  a  drop  of  milk  or  of  honey  assured  it 
life."  ^  In  cases  of  necessity,  as  e.g.  after  the  father's  death,  the 
act  of  offering  nourishment  might  stand  in  lieu  of  a  formal  recog- 
nition by  the  father.  The  first  sprinkling  or  the  first  bathing  of 
the  child  had  a  like  effect  according  to  primitive  ideas. 

The  bestowal  of  a  name,  which  was  a  necessary  consequence 
of  adopting  the  new-born  child,  was  taken  in  hand  among  the 

'  Digest,  Liber  50,  Tit.  16,  "  De  verborum  signifieatione  ",  231. 

2  For  example  the  Prussian  "Landrecht",  I,  1,  §  10:  "The  natural 
('allgemeine')  rights  of  men  inure  even  to  children  not  yet  born,  from  the 
moment  of  their  conception." 

^  Konrad  Maurer,  "t)ber  die  Wasserweihe  des  germanisehen  Hei- 
dentums",  in  K.  Bayer.  Akad.  Wiss..  "Abhandlungen"  (I  Kl.)  X\ ,  3 
(1880):  K.  Miillenhnff,  "Anzeiger  fiir  deutsches  Altertum",  VII  (1881), 
404-409,  also  in  "Deutsche  Altortumskunde",_IV  (1900),  632-638 :  //. 
Brunnrr,  "Die  Gelnirt  eines  lebenden  Kindes"  in  Z^.  R.  G.,  XVI  (1895), 
63-108;  Grosch,  "Die  Wasserweihe  als  Rechtsinstitution",  in  Z.  Vergl. 
R.  W.,  XXIII  (1910).  420-456. 

4  J.  Grimm,  "Rechtsaltertumer",  I,  627.  ^  Ihid.,  630. 

43 


§  6]  THE   LAW   OF    PERSONS  [BoOK  I 

Scandinavians  immediately  after  birth,  and  anions;  the  other 
Germanic  races  (as  among  the  Greeks  and  Romans)  on  the  ninth 
day  tliereafter,  —  with  which  fact  seems  to  be  connected  the 
later  jocular  saying,  with  reference  to  the  Swabians,  that  they 
remained  blind  for  nine  days  after  birth. 

When  the  right  of  exposure  disappeared,  under  the  influence 
of  Christianity,  the  necessity  of  a  formal  adoption  of  the  child 
into  the  family  disappeared  with  it. 

(Ill)  The  Proof  of  Birth,  —  Birth  alive  was  a  precondition  to 
the  orighi  of  legal  personality.  In  accord  with  the  formalistic 
character  of  Germanic  procedural  law  definite  facts  were  required 
to  be  established  when  the  birth  of  a  living  child  was  questioned. 
According  to  the  South-Germanic  systems  the  proof  must  be  to 
the  effect  that  the  child  had  opened  its  eyes  and  seen  the  roof- 
ridge  and  four  walls  of  the  house.  In  North  Germany  emphasis 
was  laid  upon  its  filling  with  its  cries  the  four  walls.  Often  too, 
a  cry  of  a  particular  character  ^  was  required,  —  e.g.  in  West- 
phalia one  that  could  be  heard  through  an  oaken  plank  or  a  wall. 
It  is  Brunner's  conjecture  that  this  requirement  of  the  child's 
cry,  found  in  the  whole  body  of  Saxon,  Frankish,  and  Anglo- 
Norman  sources,  is  connected  with  the  fact  that  the  primitive 
law  required  the  testimony  of  men,  and  in  critical  cases  these 
could  give  proof  of  life  only  as  ear,  not  as  eye,  witnesses ;  since 
for  reasons  of  propriety  men  were  not  allowed  to  be  present  at 
the  delivery. 

Inasmuch  as  precisely  these  manifestations  of  life,  and  not  any 
others  one  might  choose,  were  regarded  as  proofs  in  the  theory 
of  the  old  law,  the  legal  consequences  attendant  on  a  living  birth 
did  not  follow  when  these  exact  facts  could  not  be  established, 
notwithstanding  that  the  child  might  have  lived  without  seeing 
or  crying. 

Only  gradually  did  it  become  possible  to  establish  the  fact  of 
life  by  other  signs,  until  here  too,  with  the  abolishment  of  formal 
methods  of  proof,  foothold  was  gained  for  an  untrammelled  judicial 
estimate  of  proof.  Those  manifestations  of  life  that  were  once 
exclusively  heeded  retained  thenceforth  merely  the  importance  of 
particularly  reliable  evidence,  as  e.g.  still  in  the  Prussian  "  Allge- 
meines  Landrecht  "  (I.  1,  §  13),  which  declared  the  birth  of  a 
child  established  "  when  reliable  witnesses,  present  at  the  birth, 
shall  have  clearly  heard  its  voice." 

■  Brunner,  essay  just  cited,  64. 
44 


Chap.  II]  NATURAL   PERSONS  [§  6 

(IV)  Viability.  —  Now  when  we  consider  that  the  older  Ger- 
manic sources  laid  down  the  requirement  of  the  child's  cry;  that 
the  West-Gothic  law  required  that  a  child,  in  order  to  inherit  and 
leave  property,  must  have  lived  ten  days  and  been  baptized ;  and 
that  the  bestowal  of  a  name  requisite  to  the  acquisition  of  full 
capacity  for  rights  must  have  taken  place  not  earlier  than  nine 
days  after  birth,  —  it  becomes  obvious  that  Germanic  law  at- 
tached legal  consequences  to  the  birth  of  such  children  only  as 
proved  capable  of  life.  Those  brought  into  the  world  in 
so  premature  a  state  that  they  could  not  maintain  life,  and 
monstrosities,  that  showed  no  human  form,  were  regarded  as 
incapable  of  having  rights.  In  this  sense  the  Sachsenspiegel, 
for  example,  required  (I.  33)  that  the  child  should  be  "  large 
enough  ",  i.e.  born  at  such  a  stage  of  maturity  "that  it  should  be 
capable  of  living"  ("  lifhaftich  "). 

Even  after  the  Reception  men  held  fast  in  the  common  law, 
under  the  influence  of  the  Germanic  legal  ideas,  to  this  requisite 
of  vitality,  interpreting  in  this  sense  the  expressions  of  the  Roman 
law,  particularly  law  2,  Cod.  "de  postumis",  6,  29.  Savigny  was 
the  first  to  take  the  opposite  view ;  nevertheless,  in  more  recent 
years  the  older  view  has  again  found  champions  as  against  the 
common  law.  The  modern  Territorial  systems  did  not  adopt  the 
requisite  in  question,  and  in  this  respect  they  were  followed 
by  the  present  German  and  Swiss  civil  codes ;  only  the  Code 
Civil  (§§  725,  906)  retained  it. 

(V)  Registry  of  Birth.  —  The  registry  of  births  was  in  general 
ill  cared  for  in  the  Middle  Ages.  The  custom  observed  since 
the  400  s  by  the  clergy  of  keeping  a  register  of  baptisms  died  out, 
to  reappear  only  in  the  1400  s  in  the  practice  of  individual  bishops, 
who  aimed  thereby  to  make  possible  the  proof  of  disabilities  for 
marriage.  The  Council  of  Trent  made  the  Church's  records,  as 
registers  of  births  and  marriages,  a  general  institution  of  Catholic 
countries,  and  the  church  ordinances  of  the  evangelical  church 
devised  similar  regulations.  These  church  records  were  then 
recognized  by  the  State  as  public  documents.  For  all  that  these 
methods  of  authentication  remained  imperfect.  Baptisms  often 
took  place  only  a  long  time  after  birth  ;  the  registers  were  confined 
to  a  definite  diocese,  were  often  ill  kept,  and  imperfectly  preserved  ; 
above  all,  all  those  persons  who  did  not  belong  to  the  recognized 
Christian  churches,  —  the  Dissidents,  the  Jews ;  in  France,  also 
the  Protestants,  —  were  wholly  excluded  from  them. 

All  these  circumstances  contributed   powerfully  to  the  intro- 

45 


§  61  THE    LAW    OF    PERSONS  [BoOK  I 

duction  of  governmental  registers  of  personal  status.  Intro- 
duced first  into  individual  Italian  cities  in  the  1300  s  and  1400  s, 
they  received  in  France,  through  the  legislation  of  the  Revolu- 
tion and  the  Code  Civil  (§§  34  fg.),  a  universal  application 
that  served  as  a  model  for  later  times.  Germany  followed  the 
French  example  in  the  imperial  statute  on  personal  status  of 
February  6,  1875,  which  had  been  preceded  by  a  Prussian 
statute,  identical  in  content,  of  ]March  9,  1874.  In  the  regions  of 
the  French  law  in  Germany  registers  of  civil  status  had  already 
been  introduced  with  the  Code  Civil,  and  had  for  the  most  part 
since  then  been  maintained  ;  only  in  a  few  regions,  as  e.g.  in  Hesse 
and  Hamburg,  had  they  been  again  displaced  by  reactionary 
legislation.  Here,  and  in  the  other  German  States  until  the 
enactment  of  the  imperial  statute  just  referred  to,  men  contented 
themselves  with  increasing  the  dependability  of  the  church  records, 
with  the  introduction  of  similar  books  in  the  synagogues  for 
Jews,  and  with  the  intrustment  to  village  magistrates  or  judges 
of  the  registration  of  dissidents  and  non-Christians. 

§  7.  Determination  of  Capacity  for  Rights.  (I)  Natural  death 
always  involved,  and  in  the  law  of  to-day  it  alone  involves,  the 
end  of  capacity  for  rights.  For  purposes  of  record  and  for  the 
proof  of  fleath,  ecclesiastical  records  served  in  former  times  as 
they  did  for  births ;  their  place  was  later  taken  by  civil  registers. 

With  regard  to  the  question  whether,  in  case  of  the  loss  of  several 
persons  under  circumstances  of  common  peril,  some  should  be 
regarded  as  having  died  before  others,  —  a  question  that  may  be 
of  importance  in  the  settlement  of  inheritances,  —  no  particular 
rule  seems  to  have  been  adopted  in  most  of  the  older  Germanic 
sources.  The  modern  State  systems,  with  the  excej)tion  of  the 
Code  Civil  and  a  few  Swiss  statutes,  rejected  the  presumption, 
taken  over  from  the  Roman  into  the  common  law,  of  the  decease 
of  certain  persons  before  others,  —  of  parents  before  children 
beyond  tutelary  age,  of  children  under  tutelage  before  parents ; 
on  the  contrary  they  generally  established  a  presumption  of  the 
simultaneous  death  of  those  lost  under  circumstances  of  a  common 
peril.  To  this  principle  the  Civil  Code  has  adhered.  The  Swiss 
Civil  Code  (§  32)  provides  the  same  for  all  cases  in  which  the  time 
of  death  of  the  several  persons  is  incapable  of  proof,  —  i.e.  it  does 
not  limit  the  presumption  to  death  in  a  common  disaster. 

fll)  Destruction  of  Capacity  for  Rights  notwithstanding  Con- 
tinued Life.  (1)  Social  Oiifhnrri/  ("  l^Viedlosigheit  ",  —  "  jx'ace- 
lessness  ")   and  Oiitlaicry  (is-  Judicial   Process   ("  Oberacht  "). — 

46 


Chap.  II]  -  NATURAL   PERSONS  [§  7 

The  primitive  law  was  far  from  indissolubly  associating  capacity 
for  legal  rights  with  physical  life,  and  therefore  it  could  with- 
draw such  capacity  from  a  living  person  and  thereby  annihilate 
his  jural  existence,  his  legal  personality.  This  was  effected  by 
putting  him  out  of  the  peace,  which  was  the  central  idea  of  Teu- 
tonic criminal  law,  and  gave  reality  to  the  idea  "  that  he  who 
breaks  the  peace  puts  himself  outside  the  peace."  ^  Outlawry 
in  its  extreme  form  constituted  complete  destruction  of  legal 
personality ;  the  "  peaceless  "  man  lost  his  place  in  the  circles  of 
his  fellows  in  the  sib  and  folk ;  his  wife  became  widow,  his  children 
were  treated  as  orphans,  his  property  was  forfeited,  his  home  de- 
stroyed. In  time  outla^Ty  became  less  prominent.  It  retained 
its  place  longest  in  legal  procedure,  as  the  ultimate  result  of 
contumacy,  in  the  form  of  judicial  process. 

(2)  Civil  Death.  —  While  outlawry,  even  in  the  form  of  judicial 
process,  finally  disappeared  from  the  law  in  Germany,  there  was 
developed  from  it  elsewhere  the  legal  institute  known  as  civil 
death ;  particularly  in  France  where  the  after  effects  of  outlawry 
("  forbannitio  ")  united  the  effects  of  the  Roman  "  capitis  dimi- 
nutio"  and  "infamia"  with  those  of  Canonic  excommunication. 
So  late  as  in  an  ordinance  of  1670  it  was  decreed  as  the  conse- 
quence of  contumacy,  quite  in  the  old-time  manner ;  and  during 
the  1700  s  it  was  involved  in  every  condemnation  to  a  capital 
penalty.  And  although  it  thereb}^  became  a  punishment  cruel 
in  the  extreme  and  was  with  justice  violently  attacked,  it 
was  employed  freely  against  the  Emigrants  in  the  Revolution, 
and  still  found  recognition  in  the  Code  Civil  (§§  22-23),  — 
though  not  in  the  Code  Penal.  In  the  form  in  which  it 
appears  in  the  Code  Civil,  —  according  to  which  one  condemned 
to  civil  death  lost  all  his  property  rights  and  control  of  his  heritable 
estate,  became  incapable  of  disposing  of  his  property,  saw  his 
marriage  "  ipso  facto  "  dissolved,  and  could  enter  into  no  future 
marriage,  —  the  institution  was  adopted  in  Germany  in  the  re- 
gions of  the  French  law.  It  was  adopted,  further,  by  the  Baden 
"  Landrecht  "  and  the  Bavarian  criminal  code.  However,  it 
had  no  long-lived  authority  in  Germany.  Modern  ideas  called 
for  its  abandonment.  It  was  abolished  in  France  by  a  statute 
of  1854,  and  was  also  done  away  with  in  Germany — in  part 
even  earlier  than  in  France,  as  e.g.  in  Prussia  by  the  Constitu- 
tion (Art.  10).     The  present  Imperial  Criminal  Code  does  not 

1  Brunner,  "Grundziige"  (5th  ed.),  18. 
47 


§  7]  THE  LAW  OF  PERSONS  [BoOK  I 

mention  it,  and  has  thus  wholly  done  away  with  it  for  the  entire 
Empire.  English  law  still  knows  a  "  civil  death  " ;  it  occurs, 
however,  only  with  extreme  infrequency,  namely  in  cases  of 
the  still  recognized  penalty  of  civil  outlawry. 

(3)  Clatistral  Death.  —  In  the  IMiddle  Ages  those  who  entered 
a  monastic  order  or  sisterhood  were,  as  the  gloss  to  the  Sachsen- 
spiegel  put  it,  "  regarded  by  the  world  as  dead  "  from  the  moment 
of  taking  vows.  An  ecclesiastic  "  unburdened  himself  ",  to  use 
again  the  expression  of  the  Sachsenspiegel  (I,  25,  §  3),  with  his 
entry  into  the  cloister,  of  the  Territorial  and  feudal  law.  The 
English  law  as  early  as  the  1100  s,  and  later  the  French  law,  there- 
fore explicitly  designated  him  as  civilly  dead.  It  is  true  that 
this  claustral  death  was  a  diflFcrent  thing  from  the  institute  dis- 
cussed above,  which  arose  out  of  the  old  outlawry.  Monks  were 
often  enough  immersed  in  worldly  affairs,  but  in  the  view  of  the 
secular  law  they  had  no  independent  will ;  they  were  subjected  to 
another's,  "  which  as  a  matter  of  religion  might  be  thought  of  as 
the  divine  will,  but  within  the  sphere  of  temporal  law  was  repre- 
sented by  the  will  of  the  abbot."  ^  Entry  into  the  cloister 
destroyed,  therefore,  proprietary  capacity;  and  precisely  herein 
lay  the  motive  for  the  frequency  of  monastic  vows :  they  were 
a  favored  means  of  avoiding  the  partition  of  family  property. 
With  the  taking  of  his  vows  an  ecclesiastic  lost  the  power  to  dis- 
pose by  testament  of  his  property ;  this  reverted  at  once,  like  the 
estate  of  a  decedent,  to  his  blood  relations,  or  (as  the  case  might 
be)  to  the  heirs  or  legatees  already  by  him  appointed.  Any 
further  acquisition  of  property  was  for  him  impossible ;  nor 
could  the  cloister  inherit  for  him.  These  rules  of  the  medieval 
secular  law  were  followed,  among  the  modern  codes,  by  the 
Prussian  "  Allgemeines  Landrecht ",  which  declared  (II,  11, 
§§  1199,  1200)  monks  and  nuns  incapable  of  acquiring,  possess- 
ing, or  disposing  of  ownership  and  lesser  rights  in  property.  On 
the  other  hand  the  Canon  law  assumed  a  wholly  different  posi- 
tion :  it  did  not  in  matters  of  property  law  nullify  the  personality 
of  the  ecclesiastic  ;  rather,  it  transferred  this  to  his  cloister.  This 
principle  was  accepted  by  the  common  law,  and  by  the  Terri- 
torial systems  other  than  the  Prussian.  Limits  were  very 
generally  set  by  modern  statutes  to  property  accumulations  in 
a  dead  hand.  The  Civil  Code,  by  recognizing  (EG,  87)  the 
limits  placed  upon  such  acquisitions  in  the  State  systems,  has 
taken  the  same  position. 

*  Pollock  and  Maitland,  "History",  T,  416. 
48 


Chap.  II]  NATURAL  PERSONS  [§  7 

(4)  Enslavement.  —  The  older  law  recognized  a  voluntarj^ 
enslavement  ("  obnoxiatio "),  and  enslavement  might  also  be 
imposed  as  a  punishment.  There  was  likewise  involved  in  this 
a  destruction  of  legal  personality  during  life;  for  persons  in 
bondage  were  not  originally  regarded  as  subjects  of  rights  (§13, 
infra).  Thus  e.g.  Bracton,  an  English  jurist  of  the  1200  s,  speaks 
explicitly  of  the  "  mors  civilis  "  of  slaves,  since  they  are  sub- 
jected to  their  lord  precisely  as  the  monks  to  the  abbot.  Inas- 
much, however,  as  the  harsh  attitude  of  the  old  law  was  early 
abandoned  and  the  legal  personality  of  the  unfree  recognized, 
there  remained  in  such  cases  thereafter  only  a  mere  restriction 
upon  capacity  for  rights. 

(Ill)  Presumptive  Death  and  Declarations  of  Death. ^  (1) 
The  Older  German  Law.^  —  In  the  Middle  Ages  it  was  a  common 
occurrence  that  uncertainty  prevailed  at  his  home  concerning  the 
fate  of  one  who  had  left  his  country;  for  traveling  consumed 
much  time  and  was  dangerous,  and  the  possibility  of  sending  mes-  - 
sages  was  slight.  Especially  one  who  was  compelled  to  journey 
over  sea  as  merchant,  pilgrim,  or  crusader,  often  lost  for  a  long 
period  communication  with  his  home.  A  prince  of  Mecklenburg, 
Henry  I  the  Pilgrim,  who  had  gone  to  the  Holy  Land,  remained 
for  six  and  twenty  years  (1271-1298)  in  captivity  among  the  in- 
fidels ;  only  four  years  after  his  capture  did  the  news  of  it  reach 
his  people ;  afterward,  rumors  of  his  death  were  repeatedly 
circulated,  and  only  his  return  finally  put  an  end  to  uncer- 
tainty. In  such  cases  of  disappearance,  as  the  Magdeburg  and 
Liibeck  laws  show,  the  property  of  the  missing  person  was  deliv- 
ered to  his  next  heirs,  although  at  first  only  provisionally;  they 
were  bound  to  give  it  back  to  one  who  returned,  and  to  give  se- 
curity therefor  in  taking  temporary  possession.  But  if  the  missing 
person  never  returned,  the  possession  was  unchanged,  and  so 
became  a  definitive  inheritance.  At  what  moment  the  period  of 
uncertainity  should  be  taken  to  be  ended  and  the  death  of  the 
missing  person  to  be  certain,  German  law  left  open  for  judicial 
determination  in  each  case,  setting  up  no  definite  periods.  The 
proof  of  death  was  not  particularly  difficult,  because  it  could  be 
made  by  the  oath  of  him  who  averred  it ;  for  the  medieval  law  of 
procedure  permitted  proof  by  oath  even  of  those  facts  which  the 
oath  taker  merely  believed,  without  having  independent  knowledge 

^  Rruns,  "Die  VersehoUenhcit",  in  J.  B.  gem.  R.,  T  (1857),  90-201, 
reprinted  in  his  "Kleinore  Sclirifton",  I  (1882),  48-135;  //.  Mci/cr, 
"Vom  Roelitsschein  des  Todes.  Ein  Beitrag  zur  Doginatik  der  Todes- 
erklarung"  (1912). 

49 


§  7]  THE    LAW    OF    PERSONS  [BoOK   I 

thereof.  jMoreover,  all  definite  proof  of  death  could  be  wholly 
excused  when  missing  persons,  as  the  IMagdeburg  "  Questions  " 
put  it  (I,  7,  D,  6),  "  could  not  in  nature  have  lived  longer  ",  i.e. 
when  they  had  already  passed  the  years  of  a  normal  age.  So  long 
as  tleath  could  neither  be  proved,  nor  assumed  with  full  assurance 
on  grounds  of  nature,  the  absent  person  was  regarded  as  living. 
And  so,  for  example,  the  son  of  the  IMecklenburg  prince  above 
referred  to,  when  he  had  attained  majority  and  had  taken  over 
the  regency  for  his  father,  always  used  the  latter's  seal  in  acts 
of  government. 

(2)  The  Later  Development.  —  After  the  Reception  the  doc- 
trine of  unexplained  disappearance  received  a  more  ordered  form 
through  the  further  development  of  older  German  legal  ideas 
and  their  association  with  the  results  of  Italian  theory  and  prac- 
tice. In  the  first  place,  fixed  periods  were  introduced,  and  formal 
legal  presumptions  attached  to  them  ;  anfl  further,  an  ordered 
procedure  was  prescribed  as  a  precondition  to  official  declaration 
of  death. 

(A)  The  periods.  —  The  classic  Roman  law  knew,  as  little 
as  did  the  older  Germanic  law,  statutory  presumptions  of  life  and 
death ;  the  judge  was  permitted  to  draw  from  the  circumstances 
an  inference  of  probable  fact  after  an  untrammelled  weighing  of 
the  evidence.  On  the  other  hand,  the  Italian  practice,  "  under 
the  influence  of  the  theory  of  formal  proof,"  ^  developed  from 
the  assumj^tion  (current  among  the  Roman  jurists  as  well) 
that  a  hundred  years  were  to  be  regarrled  as  the  extreme  age 
of  man  the  strong  presumption  that  the  missing  person  should 
be  taken  to  be  living  to  tlie  end  of  his  100th  year  of  life 
("  presumption  of  life  "),  and  from  that  moment  on  as  dead 
("  presumption  of  death  ").  The  former  {)resumption  was, 
however,  rebuttable  by  proof,  which  in  turn  was  facilitated  by 
further  presumi)tions. 

These  presumptions  of  life  and  of  death  were  adopted  in  Ger- 
many. In  the  practice  of  the  Saxon  courts  particularly,  espe- 
cially of  the  court  of  lay-judges  at  Leipzig,  the  attainment  of  a 
definite  age  was  thus  treated  as  decisive.  The  only  change  was 
that  under  the  influence  of  Leipzig  jurists,  especially  of  Carp- 
zow,  the  limit  was  lowered,  in  eclio  of  the  saying  of  the  Psalmist, 
from  the  hundreth  to  the  70th  full  year  of  life  ("  Saxon  system  "). 
This  age  then  attained  a  common  law  authority. 

>  Gierke,  "Privatreoht",  I,  367. 
50 


Chap.  II]  NATURAL   PERSONS  [§  7 

A  mode  of  calculating  the  necessary  period,  differing  from  the 
Saxon,  evidences  of  which  already  occur  occasionall}'  in  the  Middle 
Ages,  and  which  agrees  also  with  the  older  French  customary  law, 
was  prevalent  in  Silesia  ("  Silesian  system  ").  This  emphasized, 
not  age,  but  the  duration  of  absence,  requiring  for  the  assump- 
tion of  death  the  passage  of  a  definite  period  of  time  since  the 
receipt  of  the  last  news,  without  regard  to  the  age  of  the  person 
missing.  The  expiration  of  thirty  years  was  originally  required  ; 
later,  men  were  content  with  twenty,  or  more  frequently  with 
ten  years.  This  method  of  reckoning  was  adopted  by  the  Prus- 
.sian  "  Allgemeines  Landrecht  "  and  by  the  Austrian  Civil  Code. 
Under  certain  circumstances  the  two  systems  were  united ;  for 
when  the  missing  person  w^as  of  very  great  age  a  shorter  period 
of  absence  was  deemed  sufficient,  —  e.g.  the  Prussian  law  lowered 
it  from  ten  to  five  years  for  persons  above  65  years  of  age ;  or 
it  was  wholly  waived,  —  e.g.  at  100  years  according  to  the  Code 
Civil,  at  90  according  to  the  Saxon  Code.  And  according  to  many 
systems  of  law  the  requisite  of  advanced  age  was  wholly  disre- 
garded in  cases  of  exceedingly  long  absences ;  as  e.g.,  in  Bavarian 
and  French  law,  in  case  of  an  absence  for  30  years. 

All  such  periods  were  much  shortened  in  case  the  missing  per- 
son was  proved  to  have  been  in  jeopardy  of  life,  as  for  example 
in  a  shipwreck  or  a  theater  fire.  Notably  after  the  great  wars 
of  1864,  1866,  and  1870-71,  special  statutes  were  enacted  accord- 
ing to  which  the  death  of  missing  soldiers  should  be  assumed  after 
the  running  of  a  short  period,  or  from  a  definite  date  in  the  future. 
The  Swiss  Civil  Code  (§  34)  has  derived  from  these  the  new  and 
general  principle  that  the  death  of  any  person  shall  be  regarded 
as  proved,  even  though  no  one  may  have  seen  the  corpse,  when- 
ever he  disappeared  under  conditions  that  make  his  death  seem- 
ingly certain. 

The  Saxon  practice  united  in  a  peculiar  way  the  imported  pre- 
sumptions of  life  and  death  with  the  native  rules  concerning  pro- 
visional instatement  in  actual  possession,  transforming  the  latter, 
in  analogy  to  the  Roman  "  cura  absentis  ",  into  a  so-called  "  cura 
anomala  ",  a  peculiar  guardianship  of  absent  persons.  A  "  cura- 
tor absentis  "  was  appointed  at  the  instance  of  the  next  heirs 
for  an  absent  person  whose  fate  began  to  be  doubtful,  and  there- 
upon the  heritable  estate  was  turned  over  to  them  with  full  powers 
of  administration,  subject  to  their  giving  security.  The  time 
reached  to  which  was  attached  the  presumption  of  death,  the 
heir  received   back  his   security   and   acquired   the   inheritance 

51 


§  7]  THE  LAW  OF  PErSoNS  [BoOK  I 

definitively ;  moreover  he  was  thenceforth  treated  as  though 
the  inheritance  had  fallen  to  him  at  the  moment  when  the  "  eura  " 
had  been  instituted  ('*  successio  ex  tunc  ").  This  antedating  of 
the  fact  of  inheritance  was  in  harmony,  however,  with  the  older 
Germanic  law,  which  knew  no  succession  save  in  individual 
pieces  of  heritable  property.  It  was  only  because  men  held 
fast  to  this  view  of  the  Germanic  law,  despite  the  theoretical 
reception  of  the  principle  of  universal  succession,  that  they  did 
not  at  first  remark  the  contradiction  between  the  presumption 
of  life  and  the  antedating  of  the  accrual  of  the  heritage.  But 
later  the  "  successio  ex  tunc  "  was  abandoned,  being  replaced  by 
a  "  successio  ex  nunc  "  ;  that  is,  that  moment  was  made  decisive 
of  definitive  accrual  of  the  heritage  in  which  the  [absolute] 
presumption  of  death  took  effect.  This  rule  attained  a  common 
law  authority. 

(B)  Procedure  by  citation  ("  Aufgebotsverfahren  ").  — 
The  presumption  of  death  originally  arose  the  instant  the 
term  had  run.  But  from  the  middle  of  the  1700  s  onward 
there  came  to  be  usual,  as  a  further  precondition,  a  process 
of  judicial  summons,  which  was  introduced  in  view  of  im- 
proved facilities  of  trade  and  communication.  It  prescribed 
repeated  public  summonses  of  the  missing  person,  to  be  printed 
in  the  newspapers.  If  these  remained  fruitless  the  procedure 
ended  with  a  judicial  finding  embodying  a  declaration  of  death. 
Such  summonses  were  introduced  first  into  Prussia  (1763)  on  the 
model  of  the  Saxon  practice,  and  spreafl  rapidly  thereafter  through 
the  rest  of  the  Empire.  The  Code  Civil,  alone,  did  not  adopt 
them.  The  procedure  was  regulated  in  detail  in  codes  of  pro- 
cedure. It  is  true  that  by  no  means  all  of  these  attributed  the 
same  legal  significance  to  the  final  judgment ;  and  that  in  gen- 
eral the  detailed  regulation  of  the  whole  institute  assumed 
quite  variant  forms  in  the  different  State  statutes.  A  few  of 
these,  as  the  Prussian  "  Landrecht  ",  the  Austrian  Civil  Code, 
Thuringian  statutes,  and  a  Bavarian  statute  of  1S79,  attributed 
to  the  judgment  a  constitutive  force ;  so  that  the  date  when  such 
judgment  became  effective  was  treated  as  the  day  of  death,  the 
effects  of  the  declaration  of  death  becoming  positive  from  then 
onward.  On  the  other  hand  other  statutes  treated  the  judgment 
as  declaratory,  so  that,  in  accord  with  the  older  Saxon  practice, 
that  day  was  regarded  as  the  deathday  on  which  the  legal  pre- 
conditions of  a  presumption  of  death  were  satisfied, — the  day, 
accordingly,  upon  which  either  the  requisite  age  was  reached  or 

52 


Chap.  II]  NATURAL   PERSONS  [§  7 

the  necessary  period  of  absence  had  run.  This  rule  passed  over 
into  the  common  law ;  it  was  also  adopted  by  the  Saxon  Code  and 
by  an  Austrian  statute  of  1853. 

(C)  The  return  of  a  missing  person.  —  By  force  of  a 
declaration  of  death  the  missing  person  was  regarded  in  law  as 
dead  from  the  date  so  fixed.  But  this  assumption  was  rebuttable ; 
news  might  come  establishing  another  deathday,  or  the  continu- 
ance of  life;  or  the  missing  person  himself  might  return.  The 
effects  of  the  declaration  of  death  had  then,  of  course,  to  be  re- 
scinded. Special  difficulties  resulted  when  a  spouse  left  behind 
had  contracted  a  new  marriage.  Different  legal  systems  assumed, 
as  to  this  question,  varying  positions.  The  majority,  including 
the  Prussian  "  Landrecht  "  and  the  common  law,  declared  the 
new  marriage  to  be  legally  existing  and  the  old  marriage  dissolved. 
Some  adopted  the  opposite  view,  that  of  the  Canon  law,  and 
declared  the  second  marriage  void.  A  compromise  between  these 
two  extremes  was  attempted  by  the  French  law,  which  made 
the  second  marriage  voidable  at  the  instance  of  the  missing  spouse 
who  returned,  and  also  by  the  Saxon  law,  which  made  it  voidable 
by  the  spouse  twice  married. 

(3)  Final  Result  of  Development.  —  The  new  Civil  Code  has 
substituted  for  the  earlier  diversities  of  the  law  a  complete  uni- 
formity. The  rules  adopted  by  it  (§§  13-19),  which  are  supple- 
mented by  the  provisions  of  the  Code  of  Civil  Procedure  (§§  960- 
976)  relative  to  citation-process,  have  given  a  common  law  author- 
ity, as  regards  the  essential  prerequisites,  to  what  was  formerly 
the  Silesian  system  (§  14).  It  expressly  adopts  the  presumption 
of  life  (§  19).  It  attributes  declaratory  force  to  the  judicial 
declaration  of  death  (§  18).  In  case  of  disappearance  in  war, 
at  sea,  and  in  accidents  it  establishes  abbreviated  periods  (§§  15, 
16,  17).  The  presumption  of  death  applies  also  to  the  case  of 
marriage.  Hence,  in  case  the  presumption  be  unrebutted,  the 
old  marriage  is  to  be  regarded  as  dissolved  at  the  moment  of  pre- 
sumptive death ;  but  in  case  the  error  of  the  presumption  be  dis- 
covered after  the  contraction  of  a  new  marriage,  the  latter  never- 
theless remains  valid,  for  its  consummation,  —  provided  it  be  not 
void  because  of  bad  faith  of  both  of  the  new  spouses,  —  dissolves 
the  former  marriage  (§  1348).  Each  of  the  new  spouses,  however, 
can  impeach  the  new  union  if  the  missing  spouse  still  live  (§  1350) 
subject  to  the  condition  of  good  faith. 

The  Swiss  Civil  Code  (§§  35-38)  has  established  a  somewhat 
variant  regulation  of  declarations  of  the  legal  death  of  missing 

53 


§  7]  THE    LAW    OF    PERSONS  [BoOK  I 

persons,  resembling  that  of  the  Code  Civil.  Such  a  declaration  is 
made  by  a  judge  upon  the  basis  of  a  petition,  which  can  be  pre- 
sented when  fi\e  years  have  passed,  either  since  the  peril  to  his 
life  simultaneously  with  which  the  missing  person  disappeared 
or  since  the  last  news  of  him,  and  when  the  judicial  citation  has 
also  remained  fruitless.  Swiss  law  Imows  no  presumption  of 
continued  life.  The  declaration  of  death  is  as  in  German 
law,  of  merely  declaratory  effect.  An  existing  marriage  is  not 
dissolved  by  such  a  declaration,  in  itself,  but  the  spouse  left 
behind  may  demand  its  dissolution.  The  return  of  the  missing 
person  has  no  influence  upon  a  new  marriage  (§  102). 

§  8.  Age.^  —  Youth  and  old  age  are,  as  has  been  seen,  not 
merely  physical  distinctions ;  they  always  involve  legal  differ- 
ences, also.  And  the  law  can  take  account  in  various  ways  of 
differences  of  age. 

I.  Youth :  (1)  The  Older  Law.  —  (A)  Age  periods.  —  In 
contrast  to  the  later  variety  of  vital  periods  recognized  by  the 
law,  men  recognized  in  primitive  times  only  one  division  :  that 
between  maturity  and  immaturity,  "  just  as  they  divided  the 
day  into  halves  of  morning  and  evening,  corresponding  to  the 
ancient  assumption  of  but  two  seasons  of  the  year,  summer  and 
winter."  ^  Below  this  limit  stood  the  minors,  those  "  within  or 
under  their  years  "  ;  they  passed  it  so  soon  as  they  came  "to  their 
years  ",  —  to  years  of  discrimination,  of  discernment,  of  self- 
consciousness,  to  "  anni  intelligibiles  "  or  "  discretionis  "  ;  which 
coincided  with  their  attainment  of  puberty.  The  dooms  still 
maintained,  on  the  whole,  this  primitive  view. 

It  seems  that  among  the  Germans,  —  as  also  e.g.  among  the 
Romans,  —  no  precise  moment  was  originally  assigned  at  which 
the  transition  from  immaturity  to  maturity  was  realized. 
This  took  place  according  to  individual  development.  "  The 
oldest  rule  is  probal)ly  one  which  counted  no  years,  but  measured 
the  outward  signs  of  physical  power ;  as  the  child  was  judged 
by  its  cry,  speech,  and  the  l)lowing  out  of  a  candle,  so  perhaps  the 
man  was  judged  by  his  ability  to  swing  the  spear,  or  slay  the  enemy, 
or  in  other  ways."  ^  Nevertheless,  the  attainment  of  majority 
by  no  means  effected,  of  itself,  the  removal  of  all  the  limitations 
theretofore  placed  upon  minors.     In   particular,  it   did  not  put 

•  TF.  Wackernaqcl,  "Die  LohoTisaltcr.  cin  Rcitras;  zur  vorfjioiohondon 
Sitton-  und  Rofhlsffcsfliifhto"  (18G2) ;  Stohhr.  "  Dio  Aufhchnnjr  der 
vatorlichen  Oowalt  naeh  dem  Recht  dos  Mittclaltors",  in  "Beitrilffe" 
(18fJo),  1-24.  2  Wackertiagel,  op.  cit.,  9. 

^  Grimm,  "Rechtsaltertiimor",  I.  572. 

54 


Chap.  II]  NATURAL   PERSONS  [§  8 

an  end  to  paternal  authority.  On  the  contrary,  this  was  ended 
only  by  a  formal  declaration  of  majority  by  the  father ;  or  what 
was  most  common,  by  the  son's  desertion  of  the  paternal  house- 
hold and  establislmient  of  his  own.  The  grant  of  arms  was, 
rightly  considered,  no  emancipation.  Only  for  fatherless  youths 
was  it  so ;  in  their  case,  unless  they  voluntarily  submitted  them- 
selves to  a  further  period  of  guardianship,  the  grant  of  arms 
and  majority  were  coincident.  In  other  cases  the  able-bodied 
sons  still  remained  under  the  authority  of  the  family  head.  Where 
there  was  sex-guardianship,  i.e.  where  women  were  subjected 
tlirough  life  to  the  tutelage  of  a  man  (infra,  §  9),  the  contrast 
of  minority  and  majority  existed  only  as  to  the  men. 

Among  Germanic  peoples,  however,  fixed  limits  for  the  attain- 
ment of  majority  were  adopted  at  an  early  period  and  thus  a  free 
appreciation  of  each  individual  case  was  replaced  by  a  routinary 
rule,  —  which,  indeed,  in  this  particular  matter,  the  law  cannot 
dispense  with,  even  in  its  ripest  development. 

The  ages  fixed  for  the  attainment  of  majority,  as  these  prevailed 
among  the  different  Germanic  racial  branches,  according  to  earliest 
reports,  were  in  all  cases  strikingly  early.  This  is  a  phenomenon 
that  appears  among  all  undeveloped  peoples.  It  can  perhaps  be 
explained  by  the  fact,  already  referred  to,  that  paternal  power 
was  usually  continued,  and  that  where  that  was  not  the  case  there 
might  be  a  voluntary  continuance  of  guardianship ;  and  that, 
in  general,  the  prevailingly  simple  conditions  of  life  could  not  make 
any  great  demands  upon  the  maturity  of  the  individual.  The 
earliest  date  to  be  found  within  the  whole  extent  of  Germanic 
legal  sources  is  the  tenth  completed  winter,  which  is  spoken  of  in 
the  old  Kentish  law,  and  which,  with  the  addition  of  a  year  and 
a  day,  is  still  to  be  found  in  the  Ditmarsh  law  of  the  1400  s.  Among 
most  of  the  Germanic  racial  brandies  the  twelfth  completed 
year  of  life  was  the  age-division,  —  it  was  so  with  the  Salic  and 
Chattish  Franks,  Frisians,  Lombards,  Saxons,  Anglo-Saxons, 
Alamanians,  probably  among  the  Bavarians,  and  originally  among 
the  Visigoths,  Norwegians,  and  Icelanders.  Among  others  the 
completed  fifteenth  year  was  the  limit,  as  among  the  Ripuarian 
Franks,  Burgundians,  and  the  later  Visigoths  (to  all  of  whom, 
perhaps,  the  Roman  date  of  puberty  of  fourteen  years  served  as 
a  model)  ;  and  also  particularly  among  the  West  Franks  in  their 
later  period,  among  the  later  Norwegians  and  Icelanders,  and  in 
the  "  Libri  Feudorum." 

While  these  early  age-divisions  of  the  primitive  law  remained 

55 


§  8]  THE    LAW    OF    PERSONS  [BoOK  I 

in  force  among  a  few  racial  branches, — as  in  the  Saxon  Territorial 
and  feudal  law,  in  the  law  of  Groningen,  Gelders,  and  Holland,  — 
the  age  limit  was  later  raised  by  most  of  them.  In  Germany 
the  limit  of  eighteen  years  was  widely  prevalent.  It  is  found 
in  many  town  laws  (e.g.  in  those  of  Liibeck,  Hamburg,  Goslar, 
Brunswick,  Strassburg,  and  in  the  Ditmarsh  law  of  1567),  and 
was  established  by  imperial  legislation  for  the  electoral  princes  in 
the  Golden  Bull.  Along  with  it  we  find  the  twentieth  year,  as 
in  Augsburg ;  and  the  twenty-fifth,  e.g.  in  the  Schwabenspiegel 
(G.  54,  5).  In  short,  a  great  diversity  prevailed  regarding  the 
age  of  majority,  and  in  all  lands,  —  alike  in  Germany,  in 
the  Netherlands  and  in  Italy ;  while  in  France  and  in  England 
the  age-limit  was  variously  fixed  for  different  classes,  and  not 
infrequently  the  sexes  too  were  differently  treated.  A  rule  pre- 
vailing particularly  in  the  Saxon  law  was  peculiar.  Here  the  old 
limit  of  twelve  years  was  retained  as  the  beginning  of  majority, 
but  another  was  introduced  at  the  end  of  the  twenty-first  year, 
up  to  which  voluntary  guardianship  remained  possible.  Heusler 
justly  remarks  ^  that  there  was  no  inconsistency  of  principle  be- 
tween this  and  the  other  legal  systems  (mainly  of  South  Germany), 
for  these  also  recognized  the  possibility  of  prolonging  the  period 
of  guardianship.  The  difference  was  that  the  latter,  at  an  early 
date,  postponed  the  age  of  majority  to  a  later  year,  and  therefore 
did  not  need  expressly  to  distinguish  the  second  age-limit  that 
became  customary  in  the  Saxon  law.  In  Saxon  legal  phraseology 
children  under  twelve  years  of  age  were  characterized  as  "  under 
their  years  ",  and  those  between  the  twelfth  and  twenty-first 
years  as  "  under  their  days  "  ;  in  which  connection  Jacob  Grimm 
makes  the  acute  remark  ^  that  even  yet  our  speech  is  wont  to 
count  childhood  by  years  and  old  age  by  days :  "  we  speak  of 
*  years  of  childhood  '  and  '  days  of  old  age.'  .  .  .  Time  becomes 
ever  more  precious  with  advancing  age,  in  youth  it  is  unheeded." 
However,  despite  the  introduction  of  an  age  of  majority  it 
remained  true  that  only  by  the  child's  desertion  of  the  paternal 
house, — in  the  case  of  sons,  by  the  establishment  of  their  own  house- 
hold ;  in  that  of  daughters,  by  their  marriage,  —  was  paternal  author- 
ity displaced.  Accordingly,  only  "free"  boys,  i.e.  boys  whose 
fathers  were  dead,  became  self-governing  as  soon  as  they  attained 
"their  years  "  ;  otherwise  majority  merely  had  the  consequence  that 
the  father  of  a  grown  child,  if  it  wished  to  leave  his  house,  was  no 

>  "Institutionen",  II,  491  et  seq. 
*  "Rechtsaltertumer",  I,  571. 

56 


Chap.  II]  NATURAL   PERSONS  [§  8 

longer  able  to  hinder  this.  Moreover,  despite  the  introduction 
of  a  fixed  limit  to  the  tutelary  period,  it  was,  as  before,  not  infre- 
quently necessary  to  take  note  of  "  the  physical  probative  signs  'V 
for  "  until  far  into  the  Middle  Ages  only  the  fewest  people  knew 
with  exactness  the  year  of  their  birth  or  even  their  birthday."^ 
Thus  the  Sachsenspiegel  tells  us  (I,  42,  §  1)  :  "  if  the  age  of  any 
man  is  not  known,  then  if  he  have  hair  in  his  beard,  and  below, 
and  under  each  arm,  it  shall  be  known  that  he  has  attained  his 
years  "  ("  swelkes  mannes  alder  man  nicht  ne  weit,  he  vet  he  har 
in  dem  barde  unde  nidene  under  iewederme  arme,  so  sal  man  weten, 
dat  he  to  sinen  dagen  komen  is  ").  As  a  last  means  of  proof  the 
oath  of  one  who  asserted  his  majority  was  decisive. 

(B)  As  regards  the  legal  status  of  minors,  although  Ger- 
manic law  denied  them  full  judgment,  the  power  to  distinguish 
between  good  and  evil,  it  by  no  means  treated  them  as  lacking 
all  capacity  for  legal  action.  On  the  contrary  all  persons  "under 
years  ",  even  the  smallest  children,  were  regarded  by  it  as  having 
such  capacity ;  herein  contrasting  sharply  with  the  Roman  law, 
according  to  which  "  infantes  "  were  without  capacity  for  legal 
action.  To  be  sure  they  could  not  undertake  those  jural  acts 
for  which  express  self-government  was  requisite,  —  e.g.  acts  in 
court,  disposition  of  their  persons,  and  so  on ;  and  further  it  was 
possible  for  them  to  revoke  within  a  certain  time  after  attaining 
majority  all  acts,  although  such  in  themselves  as  they  were 
capable  of  performing.  Heusler  calls  attention  to  the  fact  that 
the  dangers  which  this  rule  might  in  some  cases  have  involved 
for  young  persons  were  lessened  by  the  circumstance  that  the 
guardian  held  the  property  of  his  ward,  and  could  thus  prevent 
ill-considered  acts ;  as  also  by  the  fact  that  third  parties  would 
certainly  hesitate  to  have  dealings  with  minors,  inasmuch  as  they 
must  expect  that  the  transaction  might,  after  years  of  uncertainty, 
be  voided  by  the  minor  on  his  attaining  majority.^ 

(2)  Development  since  the  Reception.  —  While  the  Reception 
did  not  lead  to  a  complete  displacement  of  the  native  by  the  Roman 
rules,  it  did  result  in  a  far-reaching  influence  of  these  rules  upon 
the  former. 

In  the  first  place  the  period  of  "  infantia  "  was  everywhere 
interpolated ;  whereas  the  English  law,  for  example,  has  held  to 
the  old  Germanic  view,  and  even  to-day  knows,  in  principle,  only 

*  W acker nagel,  op.  cit.,  55. 
'■''Heusler,  "Institutionen",  I,  66. 
3  Ibid.,  201  et  seq. 

57 


§  8]  THE    LAW    OF    PERSONS  [BoOK  I 

one  divisional  line  between  minority  and  majority.  At  the  same 
time,  even  in  the  older  German  law  distinctions  already  appeared 
within  childhood  :  with  seven  years  the  child  began  to  learn ; 
the  church,  too,  permitted  from  seven  years  onward  ordination 
into  the  priestly  office.  But  now,  in  imitation  of  the  Roman 
law,  the  seventh  completed  year  of  life  sharply  divided  children 
wholly  without  capacity  for  legal  action  from  minors  merely  limited 
in  such  capacity.  On  the  other  hand  the  Roman  distinction  be- 
tween "  impuberes  "  and  "  minores  "  attained  no  importance  in 
Germany,  all  minors  above  seven  years,  whether  or  not  they  had 
passed  the  age  of  puberty  of  twelve  or  fourteen  years,  being  treated 
alike.  Their  juristic  acts  remained  for  the  time  in  suspense, — 
as  had  formerly  those  of  children  under  seven  years,  —  and  bound 
only  the  other  party ;  they  were  incapable  of  being  parties  to  an 
action;  the  privileges  of  "restitutio  in  integrum  "  and  the  bar 
of  the  thirty-year  prescription  period  allowed  in  their  favor,  in 
imitation  of  the  Roman  law,  were  again  abolished  in  modern  times. 
As  regards  the  moment  of  attaining  majority,  the  Roman  divi- 
sional period  of  twenty-five  years  also  attained  a  common  law 
validity  in  Germany ;  the  Schwabenspiegel,  as  already  men- 
tioned, had  earlier  adopted  it.  Side  by  side  with  this,  however, 
the  limit  of  eighteen  years  maintained  common  law  authority 
in  the  case  of  the  high  nobility  save  in  Mecklenburg,  where  it 
was  nineteen,  and  in  a  few  princely  houses  in  which  it  was  twenty- 
one.  All  these  rules  have  remained  unchanged  as  regards  the 
houses  ruling  to-day,  and  those  disjjossessed  in  1866,  though  not 
as  regards  the  other  families  of  the  high  nobility.  Unlike 
the  common  law  the  Territorial  systems  held  fast  to  the  native 
age  periods.  The  Prussian  "  Landrecht  "  adopted  that  of  twenty- 
four  years.  So  also  the  Austrian  Code,  by  virtue  of  which  this 
age-limit  still  exists  in  Austria.  In  recent  years,  however,  the  term 
of  twenty-one  years  has  attained  the  widest  prevalence  in  Ger- 
many, after  having  earlier  found  general  recognition  in  France  as  a 
result  of  the  Revolution  and  the  Code  Civil,  and  also  recognition 
within  the  regions  of  French  law  in  Germany.  The  close  of  the 
whole  development  was  reached  in  an  imperial  statute  of  February 
17,  1875,  which  fixed  that  period  for  all  Germany.  The  new 
Civil  Code  (§  2)  has  also  retained  it,  whereas  the  Swiss  Civil 
Code  (§  14)  makes  majority  begin  with  twenty  years.  More- 
over, the  newest  German  law  has  also  rctaiiuul  the  period  of 
"  infantia  "  of  the  Roman  law:  it  treats  children  under  seven 
years  as  wholly  incapable  of  juristic  acts  (RGB,  Art.  104,  115, 

58 


Chap.  II]  NATURAL   PERSONS  [§  8 

828,  1),  while  it  attributes  to  minors  of  over  seven  years  a  limited 
(§§  107-111),  and  under  certain  circumstances  even  an  unlimited 
(§  112-113),  juristic  capacity.  On  the  other  hand  the  provision 
is  new  that  paternal  authority  ends  in  all  cases  with  majority 
(§  1626;   similarly,  the  Swiss  Civil  Code,  §  273). 

(II)  Declarations  of  Majority.^  —  In  view  of  the  early  age 
of  attaining  majority  under  the  older  law,  there  could  scarcely 
exist  any  need  of  allowing  earlier  the  rights  of  majority.  From 
the  1200  s  onward,  more  frequently  from  the  time  of  Charles  IV, 
and  under  the  influence  of  Roman  legal  ideas,  the  emperors,  the 
imperial  counts-palatine,  and  Territorial  princes  had  occasionally 
conceded  to  individual  minors  the  rights  of  majority'.  Along 
with  the  Roman  period  of  majority  of  twenty-five  years,  there 
was  also  received  in  Germany  and  in  France  the  institute  of  the 
"  venia  aetatis  ",  though  this  was  substantially  modified  in  the 
Territorial  systems.  It  could  be  attained  with  eighteen  years ; 
it  was  granted  either  by  the  Territorial  prince  or  by  the  court  of 
wards.  The  latter  principle  has  been  adopted  by  the  new  Civil 
Code  (§  3),  subject  to  variant  regulations  of  State  law  (EG,  §  147). 
Beside  this  majority,  conferred  by  explicit  declaration,  many  of 
the  earlier  legal  systems  also  recognized  one  tacitly  established, 
namely  by  marriage.  According  to  them  the  principle  held, 
"  marriage  emancipates  "  ("  Heirat  macht  miuidig  "),  without 
the  husband's  powers  being  thereby  affected.  This  principle 
attained  a  common  law  validity  in  French  customary  law ;  it  is 
found  similarly  in  almost  all  systems  of  Dutch  law ;  the  English 
law  knows  only  this  form  of  "  venia  setatis."  In  Germany, 
where  it  had  remained  quite  unknown  to  the  rural  legal  sources, 
it  has  fallen  more  and  more  into  desuetude  since  the  end  of  the 
1700  s;  men  even  disputed  whether  common  law  authority  was 
not  rather  to  be  ascribed  to  the  opposite  Roman  principle  than 
to  it.  According  to  the  new  Civil  Code  an  end  of  minority  and 
guardianship  is  involved  neither  in  marriage  nor  in  the  assump- 
tion of  a  public  office  (to  which  similar  effects  were  formerly  often 
attributed).  On  the  other  hand,  the  Swiss  Civil  Code  (§  14)  has 
raised  the  old  view  of  the  German  law  again  to  honor,  ac- 
cording acceptance  to  the  principle  "  Heirat  macht  miindig  "  in 
its  original  proverbial  conciseness. 

(III)  Further  Age  Periods. — Although  the  limits  of  ma- 
jority, and  after  the  Reception  of  childhood,  were  and  are  by  far 

^  Siichier,  "Gescliichte  der  venia  setatis  in  Doutsoliland "  (1908) 
(doctoral  dissert,  at  Halle). 

59 


§  8]  THE    LAW    OF    PERSONS  [BoOK  I 

the  most  important  of  divisional  age-limits,  there  are  a  few 
others  that  can  be  of  importance  in  private  law, — and 
save  with  such  we  are  not  concerned.  In  general  the  course  of 
development  has  been  to  do  away  with  these  special  divisions  and 
to  make  decisive  in  all  things  the  limits  of  childhood  and  minority. 
Capacity  for  betrothal  was  not  attached  in  the  old  Germanic 
law  to  any  definite  age.  It  began  according  to  the  Canon  and 
the  connnon  law  at  seven  years ;  according  to  most  of  the  partic- 
ularistic systems  only  later,  and  in  part  of  these  simultaneously 
with  capacity  for  marriage.  This  last,  which  to  be  sure  by 
no  means  put  an  end  to  the  parental  right  of  consent,  was  ori- 
ginally included  in  the  general  right  of  self-control  ("  Miindig- 
keit  "),  and  was  therefore  acquired  at  an  astoundingly  early  age. 
Later  it  was  raised  in  varying  manner,  —  by  an  imperial  statute 
of  February  6,  1875,  to  the  twentieth  or  (for  women)  the  sixteenth 
3^ear.  On  the  other  hand  the  new  Civil  Code  (§  1303)  makes 
such  capacity  coincident  in  the  case  of  men  with  majority, 
lowering  it  for  women  to  the  sixteenth  year,  —  as  the  Swiss  Civil 
Code  (§  96)  does  to  eighteen  years.  Capacity  to  act  as  guardian, 
which  was  once  often  distinguished  from  majority,  was  made  to 
coincide  with  this  in  the  common  law,  and  this  rule  has  become 
general  German  law  since  the  imperial  statute  of  1S75.  Capacity 
to  make  negotiable  paper  was  formerly  not  acquired  with  majority, 
but  has  ceased  to  be  distinguished  from  this  since  the  German 
Bills  of  Exchange  Act  (1849).  Testamentary  capacity  was  very 
generally  associated  under  the  common  law  with  the  Roman  ages 
of  puberty  of  twelve  and  fourteen  years.  Under  the  modern 
particularistic  systems  it  was  generally  acquired  from  the 
fourteenth,  sixteenth,  or  eighteenth  year  onward.  The  new  Civil 
Code  (§  2229,  2)  gives  to  a  minor  of  sixteen  years  capacity  to 
make  a  will,  except  in  holographic  form  ;  he  can  make  testament- 
ary dispositions  in  the  form  of  a  contract  of  inheritance  only 
with  his  spouse  (§  2275,  2).  The  Swiss  Civil  Code  (§  467)  also 
makes  the  eighteenth  year  determinant  in  this  connection,  but 
requires  absolute  majority  for  the  conclusion  of  a  contract  of 
inheritance  (§  468).  Finally,  the  new  Civil  Code  recognizes 
a  special  age-division  for  the  incidence  of  tort  liability,  inasmuch 
as  it  does  not  recognize  such  responsibility  on  the  part  of  children 
and  youths  of  from  seven  to  eighteen  years,  unless  at  the  time 
of  committing  the  harmful  act  they  possess  the  discrimination 
necessary  to  perceive  their  responsibility  (§  828,  2).  Each  case 
is  therefore  determined  upon  its  merits,  even  though  this  cannot 

60 


I 


Chap.  II]  NATURAL   PERSONS  [§  9 

be  SO  naively  done  as  once,  when  children  under  seven  years  were 
tested  by  holding  before  them  an  apple  and  a  coin,  —  if  they 
reached  ifor  the  apple  they  could  not  yet  be  held  accountable  for 
their  acts.^ 

(IV)  Old  Age.  —  The  older  German  law  attributed  also  to  old 
age  an  influence  upon  capacity  for  legal  action.  "  To  paganism 
life  seemed  nothing  without  bodily  health  and  full  use  of  all 
limbs."  2  Accordingly,  he  who  because  of  his  age  was  no  longer 
entirely  sound  in  body  was  also  regarded  as  no  longer  a  legal  member 
of  the  community.  In  accord  with  a  cruel  and  widely  dissemi- 
nated primitive  custom,  belated  traces  of  whose  influence  are  still 
discernible,  as  children  incapable  of  life  were  exposed,  so  the  old 
were  buried  alive  or  drowned.  There  is  no  longer  mention  of 
such  practices  among  the  Germans  of  historical  times ;  but  old 
people  who  had  attained  an  age  "  boven  ire  dage "  (above 
their  days),  —  i.e.  had  reached  sixty  years  of  age,  —  were 
freed  of  many  obligations.  They  were  no  longer  bound  to  take 
oaths,  since  they  were  no  longer  able  to  defend  their  oaths  with 
arms.  They  might  again  put  themselves  under  guardian- 
ship, thereby  sacrificing  their  legal  independence.  Modern  law 
has  in  general  abandoned  this  view.  Nevertheless,  even  to-day 
the  attainment  of  old  age,  —  which  was  taken  by  the  common  law 
to  be  reached  with  the  seventieth,  and  in  the  modern  Territorial 
systems  and  also  in  the  new  Civil  Code  with  the  sixtieth,  year 
of  life,  —  does  produce  certain  legal  consequences,  especially 
the  right  to  decline  the  assumption  of  a  guardianship  (BGB,  Art. 
1786,  1.  2;  similarly  the  Swiss  Civil  Code,  §  383,  1). 

§  9.  Sex.3  —  Although  law  has  been  compelled  at  all  times 
and  in  all  places  to  place  distinctive  values  upon  the  different 
periods  of  life,  the  history  of  human  culture  shows  us  that  a  like 
compulsion  has  not  been  felt  as  regards  the  difference,  equally 
fixed  by  nature,  between  the  sexes.     The  position  of  women  in 

^  Grimm,  "Rechtsaltertiimer",  I,  569. 

2  Ibid.,  669. 

^  Laband,  "Die  reehtliche  Stellung  der  Frauen  im  altromisehen  und 
germanisehen  Reeht",  in  Z.  Volk.  Psy.,  Ill  (1865),  137-194;  Wcinhold, 
"Die  deutschen  Frauen  in  dem  Mittelalter"  (2  vols.  2d  ed.  1881) ;  Buchcr, 
"Die  Frauenfrage  im  Mittelalter"  (2d  ed.  1910);  Dahn,  "Das  Weib  im 
altgermanisehen  Reeht  und  Leben",  in  his  "Bausteine",  VI  (1884), 
161  et  scq.;  Gide,  "fitude  sur  hi  condition  privee  de  la  femme",  2d  ed. 
hy  Esmein  {1S85) ;  M aria nneWeber,''Eh.eha,\i  und 'Mutter  in  der  Rechts- 
entwicklung.  Eine  Einfiihrung"  (1907);  Ilartwig,  "Die  Frauenfrage  im 
mittelalterlichen  Liibeck",  in  Hans.  G.  B.,  XIV"  (1908),  35-94:  Finhe, 
"Die  Stelhmg  der  Frau  im  Mittehilter",  in  Inter.  W.  Seh.,  IV  (1910), 
nos.  40-41;  Fehr,  "Die  Rechtsstellung  der  Frau  und  der  Kinder  in  den 
Weistiimern"  (1912). 

61 


§  9]  THE   LAW   OF   PERSONS  [BoOK  I 

the  law  of  the  Germanic  peoples  was,  indeed,  during  a  long  time, 
notably  different  from  that  of  men.  A  woman  was  worth  less  than 
a  man ;  the  new-horn  child  was  regarded  more  highly  if  it  was  a 
boy.^  But  this  unequal  treatment  has  more  and  more  given  way, 
at  least  within  the  fiekl  of  private  law,  until  finally  to-day  in 
answer  to  one  of  the  most  insistent  demands  of  modern  legal 
consciousness,  the  equality  of  man  and  woman  has  within  that 
field  been  fully  realized. 

(I)  The  legal  position  of  woman  among  early  Germanic  peoples. 
—  If  we  contemi)late  the  conditions  of  the  primitive  Germans 
as  they  are  revealed  to  us  by  the  oldest  direct  testimony  and  as 
they  can  be  inferred  from  later  accounts,  ■ —  leaving  unconsidered 
the  difficult  question  as  to  possible  or  probable  prehistoric  rela- 
tions, —  it  is  evident  that  the  legal  status  of  women,  among  the 
early  Germans  precisely  as  among  other  civilized  people  in  the 
earlier  stages  of  their  development,  was  in  striking  contrast  to 
the  important  and  highly  respected  part  played  by  her  in  eco- 
nomic and  social  life. 

The  wife  cared,  with  the  husband,  for  the  family.  If  he  drove 
the  plow,  it  was  she  who  was  particularly  active  in  caring  for  the 
livestock ;  she  was  the  housekeeper,  she  was  responsible  for  the 
training  of  the  children,  she  prepared  the  clothing  and  the  food. 
And  never  did  the  German  regard  women  as  mentally  inferior ; 
on  the  contrary  he  very  commonly  bowed  to  women  as  to  superior 
beings.  They  were  active  as  priestesses,  seeresses,  surgeons,  and 
nurses.  Yea,  despite  their  lesser  physical  strength  they  took  part, 
often  enough,  as  warriors  in  battle ;  one  need  recall  to  mind 
only  the  role  of  women  in  the  marches  and  battles  of  the  Cim- 
brians  and  Teutons,  and  the  Walkyries,  the  shield  maidens,  of 
whom  there  were  historic  counterparts  in  the  North  as  late  as  in 
the  Viking  age.  History  and  saga  have  tales  to  tell  also  of  vigor- 
ous women  rulers.  The  Germanic  ideal  of  woman,  to  which  they 
hekl  true  through  changing  times,  was  on  one  hand,  in  the  words 
of  a  recent  Scandinavian  scholar,^  "  the  blond  and  radiant  woman, 
bringing  to  men  peace  and  gentleness  ",  but  on  the  other  hand 
the  warrior  woman. 

But  this  high  estimate  of  the  female  sex, — the  account  of  which 
by  Tacitus,  though  indeed  idealistic,  is  nevertheless  fully  confirmed 
in  its  essentials  by  the  poetry,  religion,  and  history  of  the  early 

*  Grimm,  "Reehtsaltertiimer",  I,  557.     Fchr,  op.  cit.,  6. 
^Alexander  Bugge,  "Die  Wikinj^or.    Bildcr  aus  dor  nordischen  Ver- 
gangenheit",  translated  by  Hungcrland  (1906),  57. 

62 


Chap.  II]  NATURAL   PERSONS  [§  9 

Germans,  —  by  no    means    accorded  with    the    legal    status    ofor 
Germanic  woman. 

The  family  law  of  the  Germans  at  their  entry  into  history  was 
unquestionably  of  a  patriarchal  character,  —  that  is,  one  that 
rested  upon  the  power  of  the  family  head  over  the  persons  belong- 
ing to  his  house,  and  which  w^as  substantially  limited  to  that ; 
and  this  involved  the  consequences  that  not  only  the  daughters 
of  the  house  but  also  the  married  women  were  subjected  to  that 
power  of  guarcfianship,  and  were  therefore  wanting  in  legal  inde- 
pendence, —  or,  as  it  was  called,  self-mundium  or  self-representa- 
tion. But  what  is  more,  mature  unmarried  women  (of  whom 
indeed  there  were  probably  always  but  few,  for  in  the  eyes  of  the 
people  of  that  time  a  life  for  women  outside  marriage  had  in 
general  no  purpose  or  meaning)  and  widows  were  under  the  mun- 
dium  of  male  relations.  Women  were  thus  subjected  through- 
out life  to  the  legal  authority  of  other  persons.  This  relation, 
known  to-day  as  sex-guardianship,  must  be  taken  as  the  start- 
ing-point of  the  historically  demonstrable  evolution  in  the  legal 
status  of  women ;  for  the  contrary  view,  represented  by  Ficker  ^ 
and  Opet,^  which  assumes  an  original  legal  equality  of  women  and 
men  rooted  in  prehistoric  conditions  of  "  mother-right  ",  is  lack- 
ing in  conclusive  proofs  in  the  sources.  Although  among  the 
Franks,  for  example,  the  independence  of  women  was  recognized 
in  many  directions,  and  true  sex-guardianship  appears  not  to  be 
found  at  all  in  the  Anglo-Saxon  sources,^  one  must  assume  that 
in  these  racial  branches,  as  among  the  Bavarians,  Burgundians, 
and  Goths,  the  old  conditions  had  been  overcome  at  an  early 
date.  Sex-guardianship  was  most  sharply  developed  among  the 
Lombards,  perhaps  because  the  military  character  of  political 
organization  was  with  them  most  strongly  developed.  The 
Saxon  and  Frisian  sources  likewise  show  strong  traces  of  the 
institute.  Of  the  Scandinavian  legal  systems  the  Swedish  shows 
sex-guardianship  in  greatest  development. 

The  reason  for  this  legal  treatment  of  women  can  only  have 
lain,  in  the  last  analysis,  in  the  physical  weakness  of  the  female 
sex,  which,  in  an  age  when  public  and  private  law  were  not  yet 

1  "Untersuchungen  ziir  Erbenfolge  der  ostgermanischen  Rechte" 
(incomplete,  4  vols,  and  2  half-vols.,  1891-1904). 

2  "(reschjechtsvormundschaft  in  den  frankischen  Volksreehten",  in 
Mitteil.  I.  Ost.  G.  F.,  3d  "  Krganzungsband",  1890,  1  et  seq.  Also  "Zur 
Fra<!:e  der  frankischen  Ceschlechtsvormundschaft",  in  same,  5th  "Ergan- 
zungsband",  1899,  193  d  scq. 

^Pollock  and  Maitland,  "History",  II,  435. 

63 


§  9]  THE    LAW    OF    PERSONS  [BoOK  I 

jfc'parated,  was  bound  to  influence  the  legal  status  of  women  in 
every  respect.  Despite  all  Walkyrie  ideals  Germanic  women 
were  generally  regarded  as  incapable  of  bearing  arms,  notwith- 
standing that  in  case  of  necessity  they  had  known  how  to  support 
the  men  in  battle.  And  since  the  community  was  constituted  by 
the  totality  of  arm-bearing  persons,  they  could  not  be  independent 
members  of  the  community ;  they  were  incapable  of  serving  in 
the  army,  and  therefore  also  in  the  courts — for  he  who  would 
participate  in  the  popular  court  must  be  able  to  bear  arms,  since 
the  procedural  contest  might  at  any  moment  be  transformed  into 
a  warlike  combat.  Consequently,  women  were  excluded  from 
public  life ;  in  a  legal  sense  they  were  but  members  of  a  household 
community,  that  was  represented  in  external  relations  by  its 
head.  This  had  prejudicial  effects,  also,  upon  their  capacity 
for  legal  action  under  the  private  law.  They  had  originally 
no  capacity  for  proprietary  rights ;  for  according  to  the  legal 
notions  of  antiquity,  to  which  representation  was  unknown,  who- 
ever was  to  hold  property  was  bound  also  to  administer  it ;  that 
is,  he  must  be  able  to  perform  juristic  acts,  which  in  turn  required 
capacity  to  sue  and  be  sued.  Inasmuch  as  a  judicial  character 
was  retained  longest  in  the  case  of  juristic  acts  involving  realty, 
the  proprietary  incapacity  of  women  was  also  longest  preserved 
in  respect  to  such  property.  Proprietary  incapacity  involved 
incapacity  to  inherit :  "  the  right  to  inherit  is  either  denied  to  all 
women  by  the  oldest  statutes,  or  is  limited."  ^  And  even  after 
their  status  in  this  branch  of  the  law  improved,  "  they  were  still 
postponed,  for  the  most  part,  to  men  in  rights  of  inheritance, 
either  in  that  they  were  excluded  by  males  of  equal  (if  not  by  those 
of  more  remote)  degree,  or  in  that  they  received  lesser  shares 
than  such ;  or  again,  in  that  they  were  treated  thus,  generally, 
in  the  distribution  of  the  heritage,  or  were  discriminated  against 
only  as  respected  particular  classes  of  property."  ^  Their  inferior 
rights  of  inheritance  lasted  longest  in  respect  to  real  property. 

The  peculiar  legal  status  of  the  female  sex  found  visible  expres- 
sion in  the  fact  that  the  wergclds  and  bots  of  women  were,  under 
most  of  the  folk-laws,  different  from  those  of  men.  But  only 
the  West-Gothic  law  assigned  to  them,  in  most  periods  of  life, 
lower  tariffs  than  to  the  men.  The  law  of  the  Alamanians  and 
Bavarians  assigned  them  higher  sums;  and  this  for  the  reason,  as 
the  Bavarian  folk-law  put  in  (4,  29),  that  they  were  unable  to  bear 

1  J.  Grimm,  "  Rechtsaltertiimer  ",  I,  562. 
^  V.  Amira,  "RecOit",  108  sq. 

04 


Ghap.  II]  NATURAL   PERSONS  [§  9 

arms,  "  quia  femina  cum  armis  se  defendere  nequiverit  " ;  for 
which  reason  this  favor  was  also  denied  them  once  they  had 
taken  personal  part  in  a  combat,  "  quod  inhonestum  est  mulie- 
bribus  facere."  This  thought  recurs  in  the  dooms,  in  whose 
phrase  women  who  challenge  a  man  to  battle  "  scorn  manhood."  ^ 
Tlie  enactments  of  the  Lombard  king  Rothari  fixed  a  sum  for 
killing  a  matron,  woman,  or  maiden  that  exceeded  by  a  third 
the  wergeld  of  a  man.  In  the  laws  of  the  Franks  and  Anglowarns, 
a  wergeld  threefold  a  man's  was  set  upon  women  of  child-bearing 
age ;  in  the  Alamanian  law  the  "  mulier  "  enjoyed  double  that  of 
the  "  virgo  ",  doubtless  because  a  woman  during  her  child-bearing 
years  possesses  the  greatest  value  to  society.  On  the  other  hand, 
the  Saxon  folk-law  distinguished  the  woman  who  had  not  yet 
borne  children  by  a  double  wergeld  and  bot,  while  it  set  only  the 
ordinary  sums  for  one  that  had  already  borne  children.  If  the 
pregnant  woman  was  assured  a  higher  wergeld,  along  with  other 
advantages  that  were  accorded  her  by  many  later  legal  systems, 
this  had  its  reason  in  her  greater  needs  of  protection.  Equal 
tariffs  for  men  and  women  are  found  in  the  older  Frisian  sources, 
whereas  most  of  the  more  modern  ones  favor  women  with 
higher  bots  and  wergelds,  and  some  also  give  special  protection 
to  the  pregnant.^ 

(II)  The  Medieval  Development.  —  The  lifelong  dependence 
of  women  upon  their  arms-bearing  male  relatives  could  become 
less  complete  only  as  the  importance  of  the  sib  declined,  and 
an  independent  State  power  developed  that  took  into  its  own  hands 
the  protection  of  the  weak;  and,  moreover,  only  as  the  close 
connection  between  the  capacity  for  bearing  arms  and  for  attending 
court  began  to  relax.  As  regards  the  first  requisite,  the  influ- 
ence of  the  Church,  which  contributed  to  give  prominence  to 
the  protective  duties  involved  in  guardianship,  was  certainly 
important.  The  restrictions  placed  upon  women's  capacity  for 
legal  action  were  thereby  mitigated. 

Sex-guardianship,  though  it  persisted,  as  such,  for  the  time  being 
in  most  parts  of  Germany,  took  on  an  altered  character.  No 
longer  based  upon  the  inability  of  women  to  bear  arms,  it  was 
transformed  into  a  protection  by  court,  which  was  manifested 
only  in  certain  judicial  acts  which  women,  because  of  their  igno- 
rance of  business,  were  forbidden  to  execute,  —  as  e.g.  the  [judicial] 
livery  of  seisin.     Moreover,  whereas  the  nearest  paternal  collateral 

1  Fehr,  op.  cit.,  38. 

2  His,  "Das  Strafrecht  der  Friesen  im  Mittelalter"  (1901),  142. 

65 


§  9]  THE    LAW    OP    PERSONS  [BoOK  I 

relative  was  formerly,  by  virtue  of  that  relationship,  the  guardian 
of  an  unmarried  woman,  who  was  thus  subject  to  a  legal  ward- 
ship, the  woman  herself  later  came  to  choose  a  guardian,  whom 
the  court  merely  confirmed  ;  and  in  the  end  the  guardian  was 
not  even  intrusted  with  the  office  once  for  all,  but  was  chosen 
only  for  the  particular  transaction  demanding  his  co-operation. 
Thus  the  institute  completely  lost,  as  is  readily  understandable, 
its  one  time  importance,  and  it  is  therefore  not  surprising  that 
in  many  regions  it  was  wholly  done  away  with  even  in  the 
^Middle  Ages.  This  was  the  case  in  many  parts  of  Austria,  in  the 
domains  of  the  Saxon,  Bavarian,  and  especially  of  the  Frankish 
law ;  in  France  it  entirely  disappeared  as  early  as  feudal  times, 
save  for  scant  traces.  In  Germany  a  legal  status  equal  to  that  of 
men  was  accorded,  at  least  to  widows,  by  many  legal  systems.^ 

An  equality  of  women  with  men  in  private  and  procedural 
law  Avas  by  no  means  realized,  however,  by  this  recedence  or  dis- 
appearance of  sex-guardianship.  It  is  true  that  in  the  course  of 
the  Middle  Ages  women  became  capable,  practically  everywhere, 
of  holding  land,  —  indeed,  very  commonly  also  of  holding  fiefs. 
But  in  Germany,  at  least,  they  nevertheless  remained  postponed 
to  men  throughout  the  law  of  inheritance  :  they  were  incapable  of 
acting  as  guardians  and  of  making  testamentary  dispositions  ;  and 
their  testimony  in  court  was  also  less  highly  valued  than  that  of 
men.  Indeed  it  is  a  striking  fact  that  many  legal  systems  then 
began  for  the  first  time  to  assign  to  them  a  lower  wergeld.  The 
Sachsenspiegel  and  the  Schwabenspiegel  laid  this  down  a  general 
principle :  "  iewelk  wif  hevet  ihres  mannes  halve  bute  unde  were- 
gelt ;  iewelk  maget  unde  ungemannet  wif  het  halve  bute  na  deme 
dat  si  geboren  is"  (Ssp.  Ill,  45.  §  2).  However,  these  rules  of  the 
Law-Books  and  of  other  contemporary  sources  regarding  wergeld 
and  bots  had  no  longer  any  great  practical  importance,  inasmucli 
as  the  penal  system  of  primitive  times  resting  on  wergeld  and  hot 
soon  fell  into  complete  oblivion.  In  particular,  they  could  not 
prevent  the  ever  increasing  prominence  of  women  in  economic 
life.  Especially  in  urban  industries  they  played  a  not  un- 
important part.  In  many  craft-gilds  they  were  received  as 
independent  members  with  full  rights  of  fellowship,  e.g.  as  wool 
weavers  and  linen  weavers  and  as  tailors;  this  was  particularly 
true  of  the  widows  of  deceased  masters.  There  even  existed 
craft-gilds  consisting  of  women  only ;  for  example,  in  Cologne, 

'  Fchr,  op.  cit.,  45  et  seq. 
60 


Chap.  II]  NATURAL   PERSONS  [§  9 

those  of  yarn-makers,  gold-spinners,  and  silk-weavers.^  In  the 
second  half  of  the  Middle  Ages  tradeswomen  acquired  unlimited 
capacity  for  legal  action.  Many  town  laws — as  those  of  Augs- 
burg, Memmingen,  Munich,  Vienna,  and  Prague  —  even  granted 
them  full  dispositive  powers  at  an  early  date ;  within  the  scope 
of  their  business  they  might  assume  independent  liabilities  and 
prosecute  a  case  in  court ;  and  in  order  to  do  so  they  did  not 
need,  if  they  were  married,  the  consent  of  their  husbands. 

(Ill)  The  Modern  Development :  (1)  The  Restoration  of  Sex- 
Guardianship.  —  One  might  expect  that  the  independence  gained 
by  women  in  the  Middle  Ages  could  have  been  developed  with- 
out difficulty  into  a  complete  equality  of  the  sexes  in  private 
law.  However,  within  the  domain  of  law  as  elsewhere,  develop- 
ment by  no  means  always  takes  place  in  a  straight  and  upward 
line ;  not  infrequently  constraining  influences  divert  it.  A  strik- 
ing retrogression  set  in  in  this  very  instance. 

That  which  women  had  gained  in  the  Middle  Ages  they 
retained,  it  is  true,  in  large  measure  until  into  the  1600  s,  and 
the  independence  of  women  in  trade  and  industry  was  practically 
no  longer  subject  to  any  limitations  whatever.  But  with  this 
exception,  and  almost  everj^^where,  sex-guardianship  awakened 
to  new  life  from  the  1500  s  onward ;  and  this  in  a  form  far  harsher 
than  that  of  the  older  law.  The  reason  for  this  lay  perhaps 
in  a  general  setting  or  fixation  of  culture.  The  fact  that  with 
the  collapse  of  a  household  regimen  men  felt  misgivings  about 
making  women  generally  independent,  particularly  when  trade 
was  expanding  and  legal  business  becoming  more  involved  and 
difficult,  may  also  have  been  a  contributory  cause.-  The  justi- 
fication for  this  new  sex-guardianship,  —  "  Kriegsvogtei  ", 
" Litiskuratel "  (military  guardianship,  guardianship  "ad  litem  "), 
as  it  was  called,  —  could  no  longer  be  found  in  women's  in- 
capacity to  bear  arms.  Its  justification  was  found  quite  in  con- 
trast to  the  views  of  earlier  Germanic  and  of  Roman  law,  in  an 
alleged  defective  mental  acumen  of  the  feminine  sex,  whose  under- 
standing, as  the  general  Frankish  ordinance  of  judicature  of 
1618  put  it,  is  "  somewhat  weak  and  easily  taken  advantage  of." 
Moreover,  the  more  detailed  development  of  the  institution  was 
aided  by  the  reception  of  the  Roman  law,  for  though  the  latter 

^  Behngel,  "Die  groworblieho  Stollunp:  dor  Frau  im  mittelaltorliclien 
Koln",  in  Bdoiv-Finkc-Meineckc,  " A1ilianflliin£ren",  No.  23  (1910). 

^Huher,  "Schw.  Privatrecht",  IV,  293;  Fehr,  op.  cit.,  53  (note  3) 
denies  the  alleged  revival  of  sex-guardianship. 

67 


§  9]  THE    LAW    OF   PERSONS  [BoOK  I 

knew  nothinf):  of  such  an  institute,  but  recognized  merely  the 
guardianship  of  "im])uberes",  the  rules  apphcable  to  the  hitter 
were  carried  over  to  the  "cura  sexus."  In  South  and  North  Ger- 
many they  were  accepted  and  reguhited.  It  was  so  in  many  Swiss 
town-hiws  and  judicature  statutes,  in  the  Territorial  law  of  Wiir- 
temberg,  in  the  Saxon  Constitutions  of  1572,  in  the  law  of  Bremen, 
Hamburg,  and  Liibeck.  The  Saxon  and  Liibeck  judicial  practice 
became  especially  influential.  Thus  every  adult  woman,  unmar- 
ried, widowed,  or  separated,  again  received  a  permanent  guardian 
as  the  curator  of  her  property  ;  a  "  true  steward  ",  whose  acquies- 
cence alone  gave  validity  and  obligatory  force  to  her  processual 
and  business  acts.  The  Roman  inhibition  upon  the  assumption 
by  women  of  obligations  of  suretyship  and  "  intercessio  ",  — • 
the  so-called  "  benefit  "  or  privilege  of  the  "  Senatus  Consultum 
Vellejanum  ",  —  also  attained  a  common  law  authority'. 

(2)  The  Establishment  of  Legal  Equality.  —  Although  David 
]\Ievius,  the  celebrated  commentator  on  the  Liibeck  law,  lauded 
the  legal  system  attained  by  the  reestablishment  of  sex-guardian- 
ship, and  keenly  regretted  that  it  was  not  still  everywhere  in 
force,  its  contrast  with  the  rationalistic  theories  that  were  then 
attaining  supremacy  gradually  became  too  sharp  to  permit  of 
it  being  permanently  maintained  ;  particularly  because  the  in- 
stitute had  long  since  been  transformed  from  a  legal  safeguard 
for  women  into  an  empty  form,  rather  burdensome  or  even  dan- 
gerous to  them  than  one  affording  them  protection. 

For  this  reason  the  German  States  in  which  it  existed,  follow- 
ing the  example  set  by  France,  proceeded  to  abolish  it.  The 
Prussian  "  Landrecht  ",  it  is  true,  left  standing  in  certain  cases 
a  curatorship  over  adult  married  women,  and  a  legal  adviser  for 
adult  unmarried  women  (II.  18,  §  51) ;  but  it  laid  down,  never- 
theless, the  general  principle  of  the  equal  rights  of  both  sexes, 
so  far  as  exceptions  did  not  exist  by  virtue  of  special  statutes  or 
regulations  having  the  force  of  law  (I.  1,  §  24).  No  repeal  was 
needed  in  the  Austrian  Code,  since  the  institute  had  never  been 
introduced  into  Austria ;  as  was  true  also  of  Hesse,  Oldenburg, 
Nassau,  Brunswick,  Detmold,  Waldeck,  and  Frankfort,  —  so 
that  it  was  a  disputed  question  whether  it  really  possessed  a  com- 
mon law  authority.  In  the  other  States  it  was  done  away  with 
in  the  course  of  the  l.SOO  s  :  first  of  all  in  Anhalt-Bcrnl)urg  in  1784, 
and  last  of  all  in  Wismar  in  1875.  In  a  few  Swiss  cantons  it  per- 
sisted until  1881.  The  prohibitions  of  "  intercessio  "  were  swept 
away  by  special  statutes ;   in  Prussia,  for  example,  in  18G9.     The 

68 


Chap.  II]  NATURAL   PERSONS  [§  10 

German  General  Commercial  Code  and  the  German  Industrial 
Code  recognized  the  unrestricted  capacity  of  women  engaged  in 
commerce  and  industry  to  perform  juristic  acts  and  to  sue  and  be 
sued  (though  it  is  true  the  Commercial  Code  required  the  hus- 
band's consent  to  the  wife's  assumption  of  the.  status  of  a  trades- 
woman), and  the  German  Code  of  Civil  Procedure  recognized  the 
full  capacity'  of  all  women  to  sue  and  be  sued.  Thus  there 
remained  in  effect  in  Germany,  of  limitations  upon  the  feminine 
sex  in  private  law,  only  the  postponement  in  inheritance  in  the 
case  of  feudal  estates,  peasant  land-holdings,  "  fideicommissa  " 
and  land-holdings  of  the  high  nobility  the  limited  capacity  for 
exercising  guardianships ;  the  incapacity  within  the  regions  of 
the  French  law  to  take  part  in  family  councils ;  and  incapacity 
for  feudal  tenure. 

German  law  as  it  exists  to-day  has  done  away  even  with  most 
of  these  few  limitations.  The  Civil  Code  recognizes  no  difference 
between  man  and  woman  as  respects  capacity  to  act  as  guardian 
or  participate  in  family  councils.  Similarly  it  accords  to  every 
woman,  to  the  married  woman  as  to  others,  unrestricted  ca- 
pacity to  perform  juristic  acts,  thereby  ending  the  restrictive  rule 
of  the  old  Commercial  Code.  It  gives  to  the  mother  parental 
powers  along  with  those  of  the  father ;  recognizes  women  equally 
with  men  as  witnesses ;  and  concedes  to  the  male  sex  a  preference 
in  inheritance  only  in  cases  involving  family  "  fideicommissa  ", 
estates  subject  to  the  system  of  single  heirship,  and  the  law  of 
the  high  nobility.  An  earlier  marriageable  age  and  the  rule 
respecting  the  widow's  year  of  mourning  (§  1313)  have  been 
recognized  and  continued,  and  are  the  sole  consequences,  the 
field  of  private  law,  of  a  woman's  sex. 

The  natural  differences  of  sex  have  thus  been  reduced  to  negli- 
gible traces  in  private  law,  the  law  of  inheritance  excepted  ;  and 
an  evolution  of  a  thousand  years  brought  to  a  close.  INIan,  of 
whom  it  was  once  possible  to  say  that  he  was  the  oldest  beneficiary 
of  privilege,  is  no  longer  to  be  valued  higher  by  tlie  private  law 
than  woman. 

§  10.  Health.  (I)  Physical  Health :  (1)  The  Older  Lau\  — 
As  men  reasoned  in  priniiti\e  times,  a  perfect  physical  constitution 
was  a  necessary  precondition  of  full  capacity  for  legal  rights  and 
action,  for  from  its  lack  they  inferred  mental  weakness.  And  so 
long  as  every  member  of  the  legal  community  was  bound  to  be 
capable  of  bearing  arms,  he  was  in  fact  prevented  by  bodily 
infirmity  from  participating  in  legal  transactions. 

69 


§  10]  THE    LAW    OF    PERSONS  [BoOK  I 

Badly  crippled  and  deformed  persons  had  therefore  only  a 
limited  capacity  for  rights.  They  were,  a^  a  i)roverl)  preserved  by 
Eike  von  Repgow  says,  incapable  of  inheritance  and  feudal  tenure  : 
"  Uppe  altvile  unde  uppe  dverge  Xe  irstirft  weder  len  noch  erve 
Xoch  uppe  kropellvint  ",  —  tlie  puzzling  word  "  altvile  "  denoting, 
seemingly,  cretins,  or  children  that  were  bewitched  (Ssp.  I.  4). 
Their  relatives,  however,  were  bound  to  care  for  and  maintain 
them,  so  that  some  capacity-  for  rights  was  after  all  accorded  to 
these  poor  creatures.^ 

In  the  same  class  belonged  lepers :  they  retained  ownership, 
it  is  true,  in  property  acquired  by  them  before  the  appearance 
of  the  disease,  but  were  incapable  of  further  acquisitions.  In- 
deed, the  malady  originally  dissolved  their  marriage.  They  were 
compelled  to  live  apart  from  all  mankind,  —  which  requirement 
was  based  upon  the  precept  of  the  Mosaic  law  (3  ]\Ios.  13,  46) ; 
they  were  incapable  of  litigation,  testamentary  disposition,  inheri- 
tance, and  the  contraction  of  liabilities.  Their  lot  improved  only 
with  time.  The  Church  interested  itself  in  them ;  intrusted 
their  care  to  the  bishops ;  forbade  the  dissolution  of  their  mar- 
riages ;  founded  hospitals  for  them ;  and  in  the  beginning  of  the 
1100  s  founded  a  special  order,  of  St.  Lazarus,  for  their  support. 
Leprosy  gradually  disappeared,  beginning  in  the  1400  s  ;  since  the 
1600  s  it  has  ceased  to  be  a  plague  in  the  greater  part  of  Europe. 

The  blind,  the  deaf,  and  persons  without  hands  or  feet,  were 
incapable  of  inheriting  under  the  harsh  theory  of  the  older  time, 
at  least  in  feudal  law. 

Even  persons  only  temporarily  victims  of  a  physical  and  con- 
tagious disease  were,  as  a  consequence  of  the  views  referred  to, 
obliged  to  suffer  a  limitation  of  their  capacity  for  legal  action.  In 
particular,  the  law  denied  them  unrestricted  dispositive  power 
over  their  property.  They  were  obliged  to  secure  the  assent 
of  their  legal  heirs-apparent  for  dispositions  both  of  immove- 
able and  of  moveable  property.  Hence  the  frequent  tests  of 
strength  that  the  medieval  law  prescribed  in  order  to  render 
unquestionable  one's  unimpaired  bodily  vigor,  and  therewith 
one's  unlimited  dispositive  capacity.  A  man  must  be  able  to 
swing  himself  without  aid,  armed  with  sword  and  shield,  upon  his 
steed,  or  turn  with  the  plow  a  certain  piece  of  land  ;  a  woman 
must  be  able  to  walk  as  far  as  the  church,  etc.  (supra,  p.  13). 
Above  all,  testamentary  gifts  from  the  sick  bed,  when  one  was 
conscious  of  speedily  approaching  death,  were  on  this  account 
^  Heusler,  "Institutionen",  I,  102. 
70 


Chap.  II]  NATURAL   PERSONS  l§  10 

either  forbidden  or  similarly  associated  with  certain  tests  of  physi- 
cal strength :  for  example,  a  gift  was  permitted  of  only  so  much 
as  the  sick  person  could  hand  out  over  the  bedstock.  In  this 
connection  there  was  the  additional  consideration,  as  the  gloss 
of  the  Sachsenspiegel  expresses  it  (I.  52,  §  2),  that  "  wi  sin  gut 
vorgift,  als  he  is  nicht  mehr  gebruken  ne  mach,  di  vorgift  nicht 
dat  sin  is,  mer  gift  dat  siner  erve  is  "  ("  he  who  gives  away  his 
goods  when  he  is  '  broken  '  and  no  longer  able,  gives  away,  not 
what  is  his,  but  gives  what  is  his  heirs'  "), 

(2)  The  Later  Law.  —  Already  in  the  ^Middle  Ages,  however, 
the  idea  developed  that  physical  sickness  should  not,  of  itself, 
affect  legal  capacity ;  a  view  to  which  King  Liutprand  gave  statu- 
tory effect,^  and  which  was  later  especially  advocated  by  the 
church  with  an  eye  to  the  numerous  gifts  made  to  it  for  the 
good  of  the  givers'  souls.  The  "  Kleines  Kaiserrecht  "  (Little 
Book  of  Imperial  Law)  gave  expression  to  it  with  the  striking 
words  :  "  der  sin  gut  gibet,  der  gibt  das  mit  dem  mut  und  nit  mit 
dem  libe  "  (2,  .36),  —  "  he  who  gives  his  goods,  gives  through  his 
spirit  and  not  with  his  body." 

At  the  same  time  these  limitations  upon  the  dispositive  capacity 
of  persons  physically  sick,  and  physical  tests,  persisted  down  into 
modern  times  in  many  legal  systems,  —  e.g.  in  the  law  of  Wiir- 
temberg,  Liibeck,  and  Liineburg ;  and  in  feudal  law,  consistently 
with  its  military  character,  the  acquisition  and  inheritance  of 
fiefs  was  very  generally  permitted  to  the  ablebodied.only.  Ger- 
man law  in  its  latest  form  no  longer  knows  any  general  influence 
of  bodily  conditions  in  the  private  law ;  in  case  of  necessity,  only, 
the  decrepit,  blind,  deaf,  and  dumb  may  be  placed  under  guar- 
dianship, at  their  own  instance  or  without  such  request.  The 
Civil  Code  (§  1910)  also  permits,  in  such  cases,  the  institution  of 
a  curatorship.  Finally,  specially  prescribed  formalities  exist 
as  regards  the  juristic  acts  of  the  blind,  deaf,  and  dumb. 

(II)  Mental  Health:  (1)  The  Older  Law.  —  In  earlier  times 
insight  into  the  nature  of  mental  ailments  and  their  various  de- 
grees was  very  slight.  Typical  of  the  naive  attitude  of  the  old 
Germanic  law  is  the  passage  of  the  Icelandic  Gragas  according 
to  which  he  was  treated  as  mentally  afflicted  who  could  not  tell 
whether  a  saddle  lay  upon  a  horse  properly  or  reversed,  and  whether 
he  himself  was  sitting  with  his  face  toward  the  horse's  head  or 
tail.  Naturally,  then,  the  treatment  of  such  invalids  —  who 
were  designated  by  such  expressions  as  "  geek  ",  "  rechter  dor  ", 
1  "  Leges  Langobardorum,"  Liutprand,  6. 
71 


§  10]  THE    LAW   OF   PERSONS  [BoOK  I 

"sinnloser  man"  ("booby",  "downright  fool",  "idiot")  —  was 
not  in  the  least  determined  by  medical  views.  They  were 
regarded  as  bedeviled,  or  as  criminals ;  and  against  them  men 
proceeded  with  exorcisms  and  imprisonment.  A  gentler  view 
finally  came  to  perceive  their  need  of  protection,  founded  hospitals, 
and,  especiall>',  placed  them  under  guardianship ;  which  in  turn 
limited  in  another  way  their  capacity  for  legal  action. 

(2)  The  Later  Law.  —  With  the  Reception,  the  Roman  distinc- 
tions, supplemented  by  those  of  the  Canon  law,  found  adoption 
in  Germany:  insanity  ("  Wahnsinn  "),  which  renders  one  inca- 
pable of  any  juristic  act  whatever,  but  may  be  interrupted  by 
"  lucida  intervalla  "  ;  feeble-mindedness  or  idiocy  ("  Geistes- 
schwache  ",  "  Blodsinn  "),  which  only  in  its  extreme  degrees 
resulted  in  complete  incapacity  for  action,  and  otherwise  only  in 
a  limited  incapacity  like  that  of  "  impubercs  "  above  seven  years 
of  age ;  finally,  mere  intellectual  limitations  which  might  be 
considered  in  individual  cases  in  order  to  avert  prejudicial  conse- 
quences. These  indefinite  categories  were  variously  readjusted 
in  the  later  Territorial  systems  according  to  the  ability,  for  the 
most  part  scant,  of  the  jurists  of  each  period  to  utilize  in  the  law 
the  progress  of  medical  science.  Most  important  of  these  de- 
velopments was  a  peculiar  judicial  process  of  interdiction,  which 
received  its  final  form  in  the  present  Code  of  Civil  Procedure 
(§§  645  et  seq.).  Interdiction,  so  long  as  it  continues,  effects 
incapacity  for  action  without  regard  to  lucid  intervals.  In 
addition  to  interdiction  on  account  of  such  mental  disorder 
("Geisteskranklieit")  as  results  in  incapacity  for  juristic  acts, 
the  Civil  Code,  which  followed  in  the  main  the  system  of  the 
Prussian"  Landrecht  ",  recognizes  an  interdiction  on  account  of 
feeble-mindedness  which  places  the  interdicted  person  under  the 
disabilities  of  infants  (§§  6,  104,  114)-  Besides  insane  persons, 
who  are  interdicted  and  subjected  to  guardianship,  those  persons 
are  also  incapable  of  juristic  acts  who  are  permanently  in  a  condi- 
tion of  morbid  mental  disorder  that  renders  impossible  their  free 
volition  (§  104). 

(Ill)  Prodigality:  (1)  The  Older  Law.  —  The  medieval  law 
already  knew  an  interdiction  of  prodigals,  which  very  generally 
assumed  a  form  certainly  somcwliat  drastic.  For  young  spend- 
thrifts, especially  in  the  cities,  were  not  infrequently  simply  locked 
up  for  the  betterment  of  their  habits,  or  were  banished.  Sub- 
jection to  guardianship  also  frequently  occurred,  however;  being 
decreed  either  at  the  instance  of  the  next  relatives  or  of  the  author- 

72 


Chap.  II]  NATURAL   PERSONS  [§  11 

ities,  officially,  in  order  that  such  persons  might  not,  as  paupers, 
become  a  burden  on  the  towns.  A  definite  part  of  his  propert}' 
was  customarily  left  at  the  free  disposition  of  the  ward  ;  in  respect 
to  the  rest  he  was  incapable  of  legal  action. 

(2)  The  Later  Law.  —  The  Roman  "  cura  prodigi  "  was  further 
developed  in  harmony  with  older  native  principles,  but  with- 
out producing  a  wholly  consistent  regulation  of  the  institu- 
tion. The  present  Civil  Code  has  followed  the  Austrian,  Saxon, 
and  Hamburg  law  by  postulating  as  an  element  in  the  conception 
of  prodigality  the  condition  that  the  spendthrift  expose  himself 
or  his  family  to  want,  whereas  the  Prussian  "  Landrecht  "  accepted 
as  sufficient  an  unjustifiable  and  continual  squandering  of  his 
property.  A  person  put  under  guardianship  as  a  prodigal  has  a 
limited  legal  capacity  as  in  the  case  of  an  infant  (§  114).  The 
Swiss  Civil  Code  (§  370),  going  still  farther,  has  introduced  an 
interdiction  on  the  ground  of  incompetent  management  of  one's 
affairs,  —  the  precondition  to  which  is  not  culpable  incompetency 
(prodigality),  but  simply  bad  management.^ 

(IV)  Guardianship  of  Dipsomaniacs.  —  Guardianship  of  habit- 
ual drunkards  is  an  innovation  of  the  present  Civil  Code.  The 
Swiss  Civil  Code  has  also  adopted  it  (§  370). 

§11.  Legal  Status  of  Aliens.^  —  The  law  not  only  takes  ac- 
count of  the  natural  differences  between  men  in  age,  sex,  and  bodily 
health ;  it  also  assigns  a  different  status  to  persons  on  account 
of  certain  legal  qualities. 

In  the  first  place  there  is  a  distinction  between  natives  —  fellow- 
members  of  a  commune,  state,  empire,  or  race  —  and  aliens. 

(I)  The  Older  Law.  —  Primitive  man  regards  foreigners,  whom 
he  neither  knows  nor  understands,  with  the  utmost  mistrust. 
And  in  the  earliest  times,  which  as  yet  hardly  knew  a  friendly 
commerce  of  folk  with  folk  or  land  with  land,  but  almost  exclu- 
sively conflicts  in  war,  it  is  true  that  most  foreigners  with  whom 
men  came  in  contact  were  enemies,  A\Tongdoers,  exiles,  or  spies. 
Aside  from  these,  foreigners  hardly  crossed  the  boundaries,  unless 
as  beggars  or  peddlers.  Law  existed  solely  for  the  fellows  of  the 
folk  or  racial  branch  who  felt  themselves  united,  above  all  by  a 
common  tongue.  And  therefore  among  the  early  Germanic 
races  "  the  earliest  antiquity  accorded  no  right  to  foreigners."  ^ 
And  foreigners  were  to  them,  at  first,  those  who  spoke  differently, 

^  Hedemnnn,  " Portschritte  des  Zivilrechts",  I,  73. 

2  Ibid.,  I,  65  et  scq. 

^J.  Grimm,  "Rechtsaltertiimer",  II,  467. 

73 


§  11]  THE   LAW   OF   PERSONS  [Book  I 

i.e.  the  Romans,  Kelts,  Slavs ;  also,  later,  the  North  German  to 
the  South  Germanic  races;  and  finally,  with  the  development  of 
fixed  constitutional  conditions,  "  all  those  who  were  not  united 
by  the  bonds  of  a  general  popular  assembly,  who  did  not  stand 
together  in  sacrificial  community  and  in  a  close  community  of 
law."  ^  Only  gradually  did  men  come  to  conceive  of  those  per- 
sons as  strangers  who  were  not  native  within  a  "  Land  ",  —  that 
is,  within  the  domain  of  a  racial  branch  bound  together  as  a  legal 
community,  —  or  within  the  P^mpire,  —  that  is,  within  several 
such  "  Lands  "  subject  to  a  common  sovereign;  -  until  later,  in 
the  Middle  Ages,  the  conception  of  aliens  was  made  to  cover  not 
only  the  subjects  of  a  foreign  State  but  even  persons  belonging 
to  another  commune.  In  consequence  of  the  territorial  parcella- 
tion  of  government,  which  eventually  threatened  infinity,  alienage 
and  the  law  respecting  aliens  therefore  played  a  very  great  and 
troublesome  part  in  actual  legal  life.  Under  primitive  law  for- 
eigners ("  Fremden  ",  from  "  fram  "  =  '  from  ',  '  away  '),  like 
slaves,  were  rightless ;  for  the  law  of  a  racial  branch,  folk,  or 
"  Land  "  in  which  they  were  strangers  had  no  api)lication  to  them, 
and  their  own  law,  attached  to  them  by  birth,  found  no  recogni- 
tion abroad.  Thus  the  conception  of  the  alien,  the  "  Elende  " 
(from  Old  High  G.  "  alilanti  "  =  Ausliinder,  "  outlander  "),  ran 
over  into  that  of  "unfortunate"  ("  Elend  "  =  misery);  just  as 
in  Latin  the  "  hostis  "  (corresponding  to  the  German  "  Gast  " 
=  guest)  came  to  mean  enemy .^  The  harshness  of  this  view- 
point, which  marked  the  sharpest  possible  retrogression  in  com- 
parison with  views  already  practically  realized  in  the  Roman 
world,  was,  it  is  true,  considerably  mildened  by  the  right  of  hos- 
pitage,  just  as  the  actual  lot  of  the  unfree  was  better  than  their 
legal  status  (§  13,  infra).  Out  of  the  hallowed  custom  of 
granting  to  the  guest,  "  to  the  man  coming  from  away  ",  the  pro- 
tection of  a  roof,  there  developed  at  an  early  date  a  legal  duty 
upon  whose  violation  the  folk-laws  imposed  punishments ;  and 
Charles  the  Great  later  made  these  still  harsher  in  a  capitulary."* 
Such  a  duty  was  indispensable  in  a  time  when  there  were  no  iims 
or  hospices.^  To  the  stranger,  who  travelled  ("  wandeln  ",  from 
"wargenga",  "wara"  =  protection)  thenceforth  under  the  protec- 
tion of  his  host,  it  secured  indirect  participation  in  the  local  legal 

»  Wilda,  "Das  Strafrecht  der  Germanen"  (1842),  672. 

2  Wilda,  "Strafrecht." 

'  y.  Arnirn,  "Reeht",  92. 

*  "Capitulare  missorum  peneralo",  a.  S02,  c.  27  (M.  G.,  Cap.  I,  96). 

5  MullenhoJJ,  "Deutsche  Altertumskunde",  IV  (1900),  328. 

74 


Chap.  II]  NATURAL   PERSONS  [§  11 

fellowship,  inasmuch  as  the  host  represented  him  legally.  The 
guest  might  not  dally,  it  is  true,  above  three  days ;  a  longer 
harborage  might  all  too  easily  involve  dangers  for  the  host,  who 
was  also  answerable  for  the  stranger  under  the  criminal  law. 

In  time,  even  aliens  who  did  not  put  themselves  under  the  pro- 
tection of  a  native  folk-man  also  attained  a  secure  status  through 
the  fact  that  the  king  held  it  his  duty  to  appear  as  their  pro- 
tector. This  royal  protection,  which  was  interposed  for  their 
fuller  security,  and  to  whose  development  ecclesiastical  influ- 
ences and  Roman  practices  doubtless  contributed,  is  found  among 
the  Anglo-Saxons,  Lombards,  Franks,  and  Bavarians.  But  above 
all,  the  establishment  of  the  Frankish  empire,  in  which  were  united 
under  one  supreme  authority  not  alone  most  of  the  German 
racial  branches  that  had  lived  until  then  apart  but  also  foreign 
races,  was  bound  to  modify  to  the  advantage  of  foreigners 
the  views  theretofore  prevailing  respecting  them.  Through  the 
introduction  of  the  principle  of  the  personality  of  law  {supra, 
p.  2)  the  laws  of  all  the  racial  branches  and  people  united  in  the 
Empire  acquired  equal  prestige  and  authority,  and  "  if  the  Saxon 
was  bound  to  recognize  the  Italian  as  his  fellow  in  the  Empire, 
and  a  subject  of  legal  rights,  why  should  he  deny  to  the  English- 
man, to  whom  he  felt  himself,  after  all,  more  nearly  related,  what 
he  was  forced  to  concede  to  the  other?  "  ^  The  Frankish  king 
regarded  himself  as  the  protector  of  aliens  within  his  Empire, 
granting  them  his  own  {i.e.  the  Frankish)  law,  —  although  in 
exchange  he  confiscated  their  estates  when  they  died ;  which, 
be  it  noted,  was  not  possible  under  the  Lombard  law,  save  in  de- 
fault of  sons.  By  this  concession  aliens  in  the  Empire  were  also 
provided  with  at  least  an  actual,  albeit  not  unlimited,  capacity 
for  rights ;  they  had,  for  example,  a  lesser  wergeld  than  the  ordi- 
nary freemen  of  the  Empire. 

But  these  achievements  of  Carolingian  civilization,  like  others, 
were  only  transitory.  In  connection  with  political  disintegra- 
tion, the  segregation  of  Territories  and  of  cities  as  independent 
political  units,  there  appeared  in  the  Middle  Ages  a  retrogressive 
tendency  toward  an  exclusiveness,  ever  more  strictl>'  enforced, 
against  aliens,  and  an  increasing  favor  to  natives,  although  it  did 
not  come  again  to  the  point  of  a  complete  outlawry  of  the  former. 

These  ungenerous  views  gave  origin  to  a  series  of  special  legal 
institutions  which  played  a  considerable  role  in  the  later  ]\Iiddle 
Ages  and  down  into  the  modern  period. 

^  Heusler,  "Institutionen",  I,  145. 
75 


§  11]  THE    LAW    OF    PERSONS  [BoOK   I 

(1)  TJw  Right  of  Enscrfing  ("  Wildfangsrecht  "). —  As  a  conse- 
quence of  the  old  idea  of  the  rightlessness  of  aliens,  the  local  feudal 
lords  treated  as  their  serfs  all  strange  people  who  remained  on 
their  land  a  year  and  a  day  without  their  original  lord  following 
to  reclaim  them,  and  without  voluntarily  subjecting  themselves 
to  a  native  lord,  —  so-called  "  Wildfange  ",  "  Wildfliigel  ", 
"  Bachstclzen  "  ('  trapped  game  ',  '  wild  birds  ',  —  i.e.  men 
taken  up  while  wandering  about  in  the  wilds). ^ 

This  right,  widespread  also  in  France,  was  laid  claim  to  partic- 
ularly by  the  counts  of  the  Rhine  Palatinate,  on  the  ground  of 
a  regality  ('*  Wildfangsregal  ")  alleged  to  have  been  granted  to 
them  over  all  lands  of  the  Frankish  law ;  which  claim  was  the 
cause  of  countless  and  long-protracted  feuds  and  law-suits. 

(2)  The  so-called  "  lamlsassiatiis."  —  An  alien  was  denied 
the  unconditional  right  to  buy  real  estate.  He  was  required 
first  to  take  an  oath  of  allegiance  and  become  a  burgher  or 
"  Landsasse  "  (a  person  settled  on  the  land) ;  that  is,  to  sub- 
mit himself  in  all  his  legal  relations  to  the  law  of  the  locality 
in  which  the  land  lay.  Possession  of  land  therefore  involved 
a  general  subjection  to  the  law  of  the  jurisdiction,  —  the  so-called 
"  landsassiatus  plenus."  Or  it  might  be  held  sufficient  that 
the  alien  obligate  himself  to  take  his  law  from  the  native  judge 
in  transactions  or  actions  affecting  the  possession  of  .  land,  — 
so-called  "  landsassiatus  minus  plenus."  The  "  landsassiatus 
plenus ",  which  held  sway  in  Hesse,  Bavaria,  Wiirtcmberg, 
Saxony,  Mecklenburg,  and  in  some  parts  of  Prussia,  owed  its 
origin  to  the  increasing  power  of  the  State  in  the  modern  period. 
In  Mecklenburg,  for  example,  it  was  only  in  the  early  1700  s  that 
theory  and  practice  began  to  develop  and  apply  it,  and  only  in 
1853  was  it  sanctioned  there  in  its  full  extent  by  statute,  being 
then  done  away  with  in  1873.  Elsewhere,  it  was  earlier,  abol- 
ished. 

(3)  T}ie  Right  of  Aubaine  ("  Fremdlingsrecht  ",  "  ius  albingii  ", 
"droit  d'aubaine").  Aliens  ("  albini  ",  i.e.  doubtless  =  "  alibi 
nati  ")  who  died  in  a  country  could  pass  their  estate  to  their 
relatives  abroad  either  not  at  all  or  only  partially;  the  local 
government  took  possession  of  the  estate  of  a  deceased  alien, 
in  whole  or  in  part,  as  of  an  estate  without  heirs.  Frederick 
n,  following  the  example  of  earlier  papal  statutes,  already  for- 
bade this  custom  by  a  special  imperial  statute,  the  authentic 
"  Omnes  peregrini  "  (c.  10,  Cod.  (3,  59).     Nevertheless  it  persisted, 

^  J.  Grimm,  "Rechtsaltertiimer",  I,  452. 
76 


Chap.  II]  NATURAL   PERSONS  [§  H 

and  was  practised  also  by  feudal  lords  within  their  domains; 
the  more  excusably  because  in  that  imperial  statute  such 
abatement  was  expressly  forbidden  only  to  the  harboring 
"  hospes." 

(4)  The  Inheritance  Tax  ("  Abschoss ",  "  ius  detractus,'' 
"  gabella  hereditaria  ").  — Aliens  did  not  receive  in  full  property 
given  to  them  by  a  native's  last  will,  but  were  bound  to  suffer 
a  reprise  by  the  local  governmental  authorities  of  a  tenth  to  a 
half. 

(5)  The  Tax  on  Emigration  ("  Nachsteuer  ",  "  gabella  emigra- 
tionis  ").  —  Emigrants  were  bound  to  deliver  to  the  government 
as  a  tax  a  part  (one  tenth  to  one  half)  of  the  property  with  which 
they  desired  to  leave  the  country. 

(6)  The  Medieval  Law  of  Wreck  ("  Strandrecht  ",  infra,  §  60), 
in  so  far  as  it  involved  not  only  the  occupancy  of  wreck  but  also 
the  inservitude  of  the  shipwTecked  sailor,  had  its  basis  in  the 
original  rightlessness  of  aliens. 

(II)  Modem  Development.  —  The  increasing  commerce  of 
modern  times  could  not  permanently  endure  the  fetters  of  the 
right  of  "  aubaine."  It  was  done  away  with  first  of  all  in  Italy, 
where  this  view  appeared  at  an  early  day  in  legal  theory, 
and  where,  in  Milan  for  example,  the  principle  of  the  equal 
rights  of  aliens  was  declared  so  early  as  the  late  1300  s.  In  Ger- 
many the  town  laws,  at  least,  secured  from  the  beginning  to  the 
foreigner,  the  "  guest  "  within  the  district  of  the  city-law,  the 
same  legal  protection  as  to  the  native.  And  therefore  in  the 
city  the  estate  of  a  deceased  guest  was  handed  over  to  his  heirs 
abroad  without  question  and  without  deduction,  if  they  removed 
thither,  within  a  year  and  a  day ;  only  under  the  opposite  condi- 
tions did  the  municipal  authorities  lay  claim  to  it  —  as  they  did 
also,  under  the  like  conditions,  with  respect  to  natives.  It  is  in- 
deed true  that  such  guests  were  later  subjected  in  German  cities,  as 
elsewhere,  to  manifold  restrictions.  When  a  burgher  left  a  heritage 
in  movables  to  foreign  residents,  a  tax  was  levied  ;  certain  articles 
of  inheritance,  such  as  military  trappings  and  the  widow's  para- 
phernalia were  not  even  allowed  "  to  cross  the  bridge  " ;  above 
all,  the  acquirement  of  realty  in  the  city  was  forbidden  to  alien 
residents.  In  addition  there  were  disabilities  upon  them  in  judi- 
cial procedure.  The  aggregate  of  these  principles  made  up  the 
municipal  law  of  alien  residents  ("  Giisterecht  ").  Nevertheless, 
this  should  not  be  thought  of  as  derived  from  the  old  law  of 
aUenage  ("  Fremdenrecht  ") ;   it  seems  rather  to  owe  its  origin 

77 


§  11]  THE    LAW    OF    PERSONS  [BoOK   I 

to  "tendencies  toward  monopolistic  exclusiveness  "  only  gradually 
gaining  authority  in  the  cities.' 

Still  later  men  were  again  obliged  to  introduce  ameliorations 
out  of  regard  for  commerce.  Outside  of  the  cities,  too,  the  old 
disabilities  upon  aliens  in  time  lost  ground.  For  the  alleviation 
of  the  distress  prevailing  among  their  transient  population,  there 
were  formed  in  many  localities  in  Germany  in  the  1.300 s  and  1400s, 
most  likely  under  the  influence  of  the  Church,  sj)ecial  associations, 
so-called  "  Distress  ('  Elenden  ')  Brotherhoods  ",  which  provided 
for  the  Christian  burial  of  foreigners  and  also  for  their  maintenance 
and  hosi)itage.-  At  an  early  date,  too,  the  hardships  of  the  right 
of  "  aubaine  "  were  mildened  for  certain  classes  of  aliens;  as  for 
example  for  merchants  traveling  to  fairs  and  other  marts,  for 
diplomatic  representatives,  and  in  Italy  for  foreign  students. 
The  treaties  between  different  Territorial  rulers  that  appear  at 
times  as  early  as  the  1200  s,  and  become  thereafter  more  and  more 
frequent,  also  brought  considerable  alleviations;  in  them  the 
compacting  parties  bound  themselves  to  treat  equally  the  sub- 
jects of  both,  and  in  particular  to  afford  them  safe  conduct  (treaties 
of  safe  conduct  and  legal  redress).^  But  a  general  and  equal 
treatment  of  all  subjects  of  the  Empire  within  all  its  Territories, 
the  old  German  Empire  was  incapable  of  bringing  about.  The 
Constitution  of  the  German  Confederation  swept  away  for  the 
first  time  at  least  the  most  oppressive  limitations  by  abolishing 
the  "  landsassiatus  ",  the  inheritance  tax,  and  the  emigration 
tax  for  all  German  subjects  (Art.  18).  The  right  of  "  aubaine  " 
between  German  and  non-German  States  was  not  affected  by 
this  provision,  but  it  also  disappeared  in  most  of  the  States  through 
international  treaties  or  through  statutes,  —  as  e.g.  the  Prussian 
constitution  (Art.  11).  Thus  the  principle  that  the  alien  stands 
on  an  equality  with  the  native,  already  laid  down  by  the  Prussian 
"  Landrecht  "  and  the  Austrian  Code  (though  there  still  broken 
by  exceptions),  and  demanded  among  the  "  fundamental  rights  " 
of  1848  (Art.  I,  §  4),  is  recognized  today  in  Germany  as  in  most 

1  Rudorff,  "Zur  Reohtsstellung  der  Oaste  im  inittolaltorliohon  slad- 
tisehen  Prozess",  in  Gierke's  "Untprsuohunpfcn",  No.  88  (1007).  With 
whifh  foniparo  .1 .  Sch  iilize  in  Z^.  H .  ( J . .  XXV 1 1 1  (1907 ) .  502-51 1 ,  and  I  list. 
Z.  CI  (3d  scr.  Vol.  5,  —  1908),  473-.5'2S.  on  "(iastcrcflit  und  (Jasttrericht  in 
den  deutsclicn  Statlton  dcs  Mittclallers"  ;  .Jnnchim  in  Hans.  (1.  B.  XV 
(1907),  218-230.  //.  Meyer  \n  Dent.  Litt.  Z.  1909,  No.  48;  ().  Loening, 
"Das  Erbrof'ht  der  Fremdon  nach  don  dcutsclien  iStadtrechten  des 
Mittelalters,"  in  "  F^estschrif t  O.  Gierke  darfrebracht"  (1911),  285-303. 

2  !>.  Mneller,  "Die  Elcnd('nl)riiders('hafton"  (1906). 

3/1.  Srhulize,  "Zum  (rc'loit.s-  und  Gasterecht,"  in  Vj.  Soz.  W.  G.  IX 
(1911),  229-237. 

78 


Chap.  II]  NATURAL   PERSONS  [§  12 

other  civilized  States.  France  alone  still  remains  an  exception, 
inasmuch  as  Art.  11  of  the  Code  Civil,  excluding  aliens  from 
"  droits  civils  ",  has  not  yet  been  repealed.  In  Germany  limita- 
tions exist  today,  generally  speaking,  only  upon  the  subjects 
of  such  States  as  do  not  concede  to  Germans  equality  with  their 
own  subjects.  Only  a  few  peculiar  rules,  respecting  aliens, 
partly  of  the  Empire  and  partly  of  the  States,  are  known 
today  to  the  private  law.  State  law  can,  for  example,  make  the 
acquisition  of  realty  by  foreign  juristic  persons  dependent  upon 
the  approval  of  the  State;  aliens  are  barred  from  acquiring 
interests  in  ships,  and  are  less  favored  than  natives  in  the  law 
of  copyright,  trade  marks,  and  trade  names ;  they  have  no  right 
to  reside  in  Germany ;  etc.  Moreover,  according  to  Art.  3  of  the 
Imperial  Constitution,  which  has  established  the  common  na- 
tivity of  all  Germans,  only  persons  from  outside  the  Empire  are 
aliens  in  the  eye  of  the  law.  In  Switzerland  the  Civil  Code  has 
abolished  all  older  Cantonal  limitations  upon  aliens. 

§  12.  Religion.  (I)  The  Influence  of  Religion  upon  Private 
Law,  generally:  (1)  In  the  Middle  Ages,  and  for  the  Christian 
population  comprehended  in  the  Catholic  church,  membership 
in  that  church  was  just  as  essential  a  precondition  of  an  individual's 
legal  existence  as  was  his  membership  in  the  State.  He  who  stood 
outside  the  one  ecclesiastical  community  could  not  be  a  member, 
either,  of  the  secular  community  of  law :  from  the  viewpoint  of 
the  medieval-Christian  theory  of  the  world,  heretics,  heathen, 
and  Jews  were  not  persons  in  a  legal  sense.  Hence  it  was  that 
the  anathema  of  the  Church  drew  after  it  the  outlawry  of  the  Em- 
pire, and  he  who  fell  from  faith  committed  in  so  doing  a  secular 
crime,  which  the  German  emperor,  exactly  like  the  later  Roman 
rulers,  threatened  with  severe  punishments.^ 

(2)  Only  in  Modern  Times  and  as  a  result  of  the  schism  of  faiths, 
did  a  change  take  place  in  these  views  and  conditions.^  Not, 
to  be  sure,  directly.  For  the  Reformers  and  their  followers  like- 
wise persisted  to  the  end  in  the  opinion  that  State  and  Church 
constituted  an  indissoluble  unity,  and  that  therefore  all  svbjects 
of  the  State  must  be  members  of  the  same  church.  Although 
the  Protestants  were  unable  to  secure  dominance  over  the  fol- 
lowers of  the  old  faith,  they  did  attain  through  the  Augsburg 

'  Eichmnnn,  "Aeht  iirid  Bann  im  Reichsreeht  des  Mittelalters." 
("Crorres-Gesellschaft  zur  Pflepe  der  Wissonschaft  im  katholisohen 
Deutschland.     Sektion  fiir  RcM'hts-  und  Sozialwissensehaft "'.  Vol.  fi,  1909.) 

^  liieker,  "Die  rcehtlielie  Stellunfi:  der  evangeliscbeu  Kircho  Dent se fa- 
lands  in  ihxer  geschichtliehen  Entwifklung  bis  zur  Gegenwart"  (1893). 

79 


§  12]  THE    LAW    OF   PERSONS  [BoOK   I 

religious  peace  of  1555,  as  Augsburg  co-religionists,  the  status  of 
a  merely  temporarily  tolerated  sect,  and  thus  an  exceptional 
status  as  compared  with  the  legal  position  of  the  Jews.  Alike  in 
the  Empire  and  in  the  Territories,  one  exclusive  church  was 
recognized,  after  as  before,  as  the  only  possible  arrangement ;  but 
with  this  difference,  that  these  Territorial  churches  conformed  to 
the  confession  of  the  Territorial  ruler,  and  might  therefore  be  either 
Catholic  or  Evangelical.  Accordingly,  here  too  membership  in 
the  Territorial  church  remained  the  first  essential  to  the  recogni- 
tion of  legal  personality. 

The  triumph  of  the  modern  scientific  spirit,  which  prepared 
the  way  for  the  dominance  of  the  "  law  of  nature  ",  deprived  of 
their  foundation  these  medieval  views.  Men  came  to  recognize 
that  the  State  was  not  appointed  to  care  for  the  spiritual  welfare 
of  its  subjects,  but  merely  for  the  external  legal  order ;  the  reli- 
gious confession  of  its  citizens  might  therefore  be  indifferent  to 
it,  provided  only  that  the  faiths  thus  practised  side  by  side  did 
not  disturb  the  public  peace.  Religious  faith  thus  lost  its  former 
importance  for  the  legal  status  of  the  individual.  However,  it 
always  remained  a  self-evident  precondition  that  there  must  be 
in  question  a  Christian  confession,  —  membership  in  one  of  the 
two  Christian  faiths  recognized  in  the  Empire. 

In  the  peace  of  Westphalia  this  view  received  recognition  as 
a  fundamental  principle.  But  although  that  peace  assured  to  the 
Catholic  and  Evangelical  estates  of  the  Empire  an  "  sequalitas 
exacta  mutuaque  ",  in  contrast  with  the  mere  sufferance  of  the 
Augsburg  Peace,  still  this  meant  only  a  parity  of  the  two  con- 
fessions as  such,  and  not  at  all  an  equality  of  the  individual  ad- 
herents to  those  faiths.  On  the  contrary,  the  peace  explicitly 
confirmed  the  "  ius  reformandi  "  (i.e.  "  exercitium  religionis  ") 
of  the  Territorial  rulers ;  that  is,  their  competence  to  determine, 
within  the  limits  of  action  allowed  them  by  the  Empire,  the  reli- 
gions of  their  domains,  and  therefore  to  declare  either  one  of  the 
confessions  recognized  by  the  Empire  to  be  the  Territorial  church. 
Those  subjects  who  did  not  conform  to  the  State  church,  the 
Territorial  ruler  was  not  bound  to  respect :  he  might,  as  a  last 
resort,  compel  them  to  emigrate,  though  without  loss  of  property 
(the  so-called  "  flebile  bencficium  cmigrationis  ").  An  exception 
to  the  "  frightful  "  principle  "  cuius  regio  eius  religio  ",  was  made 
only  for  those  Evangelical  subjects  of  Catholic  estates  of  the  Em- 
pire, and  those  Catholic  subjects  of  Evangelical  estates  of  the 
Empire,  who  in  the  year  1624  had  been  in  enjoyment  of  the  right 

80 


Chap.  II]  NATURAL   PERSONS  [§  12 

of  free  religious  worship.  This  exception,  moreover,  did  not  exist 
in  Austria ;  which  thus  was  given  the  opportunity  to  root  out, 
with  every  instrument  of  force,  the  EvangeUcal  faith  widespread 
within  its  Territories. 

In  time  the  drastic  principle  of  a  rigid  State  church  received 
further  ameliorations  in  practice,  especially  through  recognition 
of  the  principle,  first  applied  in  Brandenburg,  that  Lutherans  and 
Reformed  need  not  be  affected  by  a  change  in  the  confession  of 
their  Territorial  ruler.  There  was  thus  developed  in  most  of  the 
Territories  during  the  1700  s  a  "  de  facto  "  situation  under 
which  one  church  was,  indeed,  still  recognized  as  the  Territorial 
church,  but  sufferance  was  assured  to  the  two  other  churches, 
as  such,  and  likewise  to  their  members. 

The  first  break,  in  principle,  with  the  regimen  of  a  State  church 
was  made  by  Prussia,  where  the  concession  of  religious  freedom  as 
freedom  of  the  individual  in  conscience  and  confession,  the  neu- 
trality of  the  State  in  confessional  questions,  and  a  liberal  tol- 
eration of  sectarianisms,  were  principles  that  determined,  as 
unwritten  law,  the  practical  ecclesiastical  policy  as  early  as  the 
beginning  of  the  1700  s.  They  first  took  the  form  of  written  law 
in  the  draft  of  the  General  Code  (1784-85),  afterwards  in  the 
Woellner  religious  edict  of  1788,  and  finally  in  the  "  Allgemeines 
Landrecht  "  (1794)  .^  All  three  Christian  churches  received  the 
status  of  recognized  and  privileged  corporations.  Every  differ- 
ence of  legal  status  was  thereby  utterly  abolished  as  between 
their  adherents ;  and  practically  the  same  was  true  of  the  other 
Christian  sects,  inasmuch  as  these  secured  thenceforth  the  same 
toleration  which  had  theretofore  been  enjoyed  by  the  two  minor 
principal  confessions  under  the  dominant  one.  The  Prussian 
legislation  was  not  yet  bold  enough  to  extend  this  toleration  and 
equality  of  treatment  to  non-Christians,  and  to  those  who  adhered 
to  no  religious  community  whatever ;  it  allowed  itself  to  be  fore- 
stalled in  this  respect  by  France,  and  even  by  Austria.  For  as 
the  Code  Civil  (§  8)  conceded  to  every  Frenchman  the  enjoyment 
of  civil  rights,  so  the  Austrian  Code  (§  39)  declared  positively 
and  exj^licitly  that,  aside  from  certain  statutory  exceptions,  reli- 
gious dift'erences  should  have  no  influence  upon  civil  rights ;  a 
principle  which,  to  be  sure,  in  Austria's  case  remained  simply 
a  paper  law.  The  illiberal  view  of  the  Prussian  "  Landrecht  " 
was  raised  by  the  Act  of  the  German  Confederation  to  the  dignity 

^  Anschutz,  "Die  Verfassungsurkunde  fiir  den  Preussisclien  Staat. 
Ein  Kommentar  fiir  Wissenschaft  und  F*raxis",  I  (1912),  183  et  seq. 

81 


§  12]  THE    LAW    OF    PERSONS  [BoOK   I 

of  a  general  German  federal  law,  by  the  provision  (in  Art.  IG,  1)  : 
"  Differences  between  Christian  sects  shall  be  the  excuse  for  no 
difference  in  the  enjoyment  of  civil  and  political  rights  within  the 
States  and  districts  of  the  German  Confederation."  Accordingly, 
the  adherents  of  "Christian  sects"  —  that  is,  as  was  officially 
determined,  the  three  Christian  confessions  recognized  since  the 
Westphalian  Peace  —  were  necessarily  treated  with  complete 
legal  equality  in  all  German  States ;  they  could  no  longer  be 
compelled  to  emigrate,  nor  be  otherwise  put  at  a  disadvantage, 
one  with  another,  in  any  way.  On  the  other  hand  the  Act  of 
Confederation  did  not  declare  how  the  adherents  of  other  con- 
fessions or  sects  were  to  be  treated ;  moreover,  it  left  to  the  in- 
dividual States  comi)lete  liberty  to  determine  what  churches 
they  woidd  permit  within  their  territory,  and  what  measure  of 
rights  they  would  accord  to  churches  and  confessions  as  such. 
Most  of  the  confederated  States,  following  the  Prussian  example, 
authorized  the  three  confessions  recognized  by  imperial  law  as 
churches  entitled  to  equal  rights  (though  Mecklenburg,  for 
example,  did  not) ;  and  all  of  them  maintained  the  difference 
between  them  and  other  religious  societies. 

The  movement  of  1848  first  led  to  the  complete  abolition  of  the 
old  restrictions.  The  "German  Fundamental  Rights"  (Art.  Ill, 
§  14.  16)  declared  for  the  extension  of  the  principle  of  the  Act 
of  Confederation  to  the  extent  that  not  only  members  of  the  three 
recognized  Christian  sects,  but  also  the  adherents  of  every  con- 
fession of  faith  whatsoever,  and  equally  those  who  adhered  to  no 
religious  community,  should  participate  as  equals  in  the  enjoy- 
ment of  civil  and  political  riglits.  Some  States  gave  positive 
authority  to  this  principle  within  their  territory,  —  so  e.g.  Prussia, 
by  the  second  subdivision  of  Art.  12  of  its  constitution :  "  The 
enjoyment  of  civil  and  political  rights  is  independent  of  religious 
faith."  The  North  German  Confederation  and  the  present  Ger- 
man Empire,  soon  after  their  establishment,  converted  this  prin- 
ciple into  a  main  pillar  of  the  centralized  legal  order  under  them 
newly  realized.  First,  the  Act  of  Nov.  1,  1807,  respecting  liberty 
of  domicile,  provided  that  freedom  of  residence,  domicile,  industry, 
and  acquisition  of  realty,  should  be  denied  to  no  subject  of  the 
Confederation  on  account  of  his  religious  faith.  And  thereafter 
the  Act  of  July  3,  1869,  "  the  fundamental  law  of  freedom  of 
conscience  within  the  German  Empire,"  —  the  single  short  para- 
graph of  which  statute  embodies  one  of  the  most  important  achieve- 
ments of  modern  times,  —  declared  in  quite  general  and  unqualified 

82 


Chap.  II]  NATURAL   PERSONS  [§  12 

terms  that  "  all  limitations  whatever  upon  civil  or  political  rights, 
based  upon  differences  of  religious  faith,  are  hereby  abolished. 
In  particular,  competence  to  take  part  in  communal  and  national 
assemblies  and  for  the  exercise  of  public  office  shall  be  inde- 
pendent of  religious  faith." 

Notwithstanding  this,  certain  restrictions  were  regarded  as 
still  existent,  —  for  example  the  well-known  prohibition  in  cer- 
tain States  of  marriages  between  Christians  and  non-Christians ; 
but  all  imperfections  possibly  still  remaining  in  the  law  were  finally 
remedied  by  the  imperial  statute  of  personal  status  of  Feb.  6,  1875, 
and  the  present  Civil  Code.  Difference  of  religious  faith  is 
today  neither  an  obstacle  to  marriage  nor  a  ground  for  divorce 
or  disinheritance.  And  though  adherence  to  a  definite  religion 
or  confession  can  still,  by  by-laws  ("  Statuten  ")  or  by  legal 
agreements,  be  made  a  precondition  to  the  acquisition  or  the  exer- 
cise of  rights,  this  is  a  result  of  the  principle  of  freedom  of  con- 
tract, and  has  nothing  to  do  with  the  earlier  statutory  inequality, 
no  more  than  has  the  provision  of  the  present  Civil  Code  (§  1779) 
that  in  the  choice  of  a  guardian  regard  shall  be  had  to  the  religious 
faith  of  the  ward. 

The  most  important  result  of  the  statute  of  1869  was  the  estab- 
lishment of  complete  legal  equality  between  Christians  and  Jews. 

(II)  The  Status  of  the  Jews  in  Private  Law  :  ^  (1)  In  the  Middle 
Ages.  —  The  position  of  the  Jews  has  been  a  peculiar  one  from 
the  earliest  times.  They  were  not  heathen,  since  they  believed 
in  the  same  God  as  did  Christians,  nor  yet  heretics,  persons  fallen 
from  the  true  faith  ;  but  persons  who  held  aloof  therefrom.  But 
they  were  distinguished  from  the  Christian  peoples  among  whom 
they  lived  not  alone  by  their  faith,  but  also  by  their  race :  they 
were  not  fellow-countrymen,  but,  despite  their  domicile  among 
them,  aliens.  These  two  facts  were  decisive  of  their  legal  treat- 
ment, but  the  Jewry  statutes  of  the  Middle  Ages  laid  the  greater 
emphasis  now  on  one,  now  on  the  other.  The  fundamental 
idea,  as  a  consequence  of  which  the  Jews  were  regarded  as  adher- 
ents of  an  alien  confession,  inimical  to  the  dominant  State  religion 
and  against  whose  influences  this  was  to  be  protected,  came  from 

'  Stobbe,  "  Die  Juden  in  Deutsehland  wahrend  dcs  Mittelalters  in 
politiseher,  sozialer  und  rechtlieher  Bezielumg"  (1866);  Scherer,  "Bci- 
trage  zur  Oesehichte  des  Judenrechts  im  Mittelaltcr.  Erster  Band  :  Die 
Reohtsverlialtnisse  der  Juden  in  den  deutsch-osterreiehischen  Landern" 
(1901);  Cnro,  "Sozial-  und  Wirtsehaftsgeschichte  der  Juden  im  Mit- 
telalter  und  der  Neuzeit.  Band  T  :  Das  friihere  und  das  hohe  Mittel- 
alter"  (1908),  —  one  of  the  "Sehrifton  herausgegeben  von  der  Gesellschaft 
zur  P"'orderung  der  Wissenschaft  des  Judentumes"). 

83 


§  12]  THE    LAW    OF    PERSONS  [BoOK    I 

the  later  legislation  of  the  Roman  Empire,  to  which  the  legis- 
lation of  the  Germanic  States  that  arose  within  the  territory  of 
that  Empire,  —  the  East  and  West  Gothic,  Lombard,  Burgundian, 
and  ]\Ierovingian,  —  conformed.  ^Yhat  was  most  important,  the 
medieval  church  also  made  that  view  its  own.  It  granted  to  the 
Jewish  religion  as  such,  toleration,  and  to  its  adherents  protection 
of  life,  property,  and  religious  customs  and  institutions  ;  but,  on  the 
other  hantl,  it  pursued  with  every  means  the  end  of  protecting 
Christianity  against  any  possible  influence  of  Judaism.  Numerous 
papal  bulls  for  their  protection  served  to  secure  the  Jews  against 
force ;  and  countless  enactments,  partly  of  a  precautionary  and 
partly  of  a  more  directly  protective  character,  served  for  the  se- 
curity of  Christianity.  Thus  the  Canonic  law  of  Jewry,  gradually 
given  form  by  the  Church,  which  attained  authority  throughout 
the  Christian  world,  and  in  many  lands  —  as  e.g.  France  and 
England,  —  was  embodied  also  in  the  legislation  of  the  State, 
forbade,  among  other  things,  marriage  between  Christians  and 
Jews,  and  the  holding  of  public  offices  by  Jews ;  they  might  not 
employ  a  Christian  servant,  nor  reside  in  all  parts,  nor  accuse  or  beat 
witnesses  against  Christians ;  they  were  obliged  to  wear  a  dress 
that  distinguished  them  from  Christians ;  Christians  might  neither 
lease  nor  rent  them  goods  or  houses ;  and  other  like  restrictions. 
On  the  other  hand  the  medieval  Germanic  law,  to  which  natu- 
rally the  Church's  standpoint  was  essentially  alien,  and  in  which 
this  received  even  later  but  a  secondary  recognition,  and  which  re- 
quired membership  in  the  folk  as  a  precondition  of  ca})acity  for 
rights  (supra,  p.  73),  treated  the  Jews  as  aliens ;  that  is,  as  rightless, 
like  the  slaves.  The  law  of  alienage  formed  the  foundation  for  the 
treatment  of  the  Jews  in  the  Prankish  as  well  as  in  the  German 
Empire  of  the  Middle  Ages.  Nevertheless,  the  actual  situation 
of  the  Jews,  like  that  of  the  slaves,  was  not  an  unfavorable  one 
down  into  the  1100  s.  For  in  that  early  period  of  the  Middle 
Ages  they  were  an  indispensable  part  of  the  population  as  the 
chief  middlemen  in  trade  and  banking;  and  rulers  therefore 
exempted  them,  through  the  conferment  of  special  rights,  from 
the  results  of  the  law  of  alienage.  The  Carolingian  kings  may 
possibly  have  already  issued  patents  of  protection  to  individual 
Jews,  though  a  true  law  for  the  protection  of  the  Jews  certainly 
did  not  then  exist.^     Such  a  law  took  body,  however,  in  the 

'  Tdnr/l,  "Zum  .Judonschutzrefht  untcr  den  Karolingorn",  in  Neues 
Arf'liiv  der  (Jesellschaft  fiir  altere  deutsche  Geschichtskunde,  XXXIII 
(1908),  197  et  scq. 

84 


Chap.  II]  NATURAL   PERSONS  [§  12 

course  of  the  Middle  Ages  as  a  result  of  such  patents  of  pro- 
tection, which  were  granted  with  ever-growing  frequency  by  rulers, 
and  were  not  only  conceded  in  favor  of  specific  individuals, 
but  in  some  cities  —  as  e.g.  in  Speier,  Worms,  Regensburg  —  were 
issued  from  the  1000  s  onward  in  favor  of  all  Jews  dwelling 
therein.  The  privileges  they  enjoyed  in  Worms  were  extended 
by  Frederick  II  in  1236  to  all  the  Jews  in  Germany.  This  was 
the  first  general  Jewry  law  of  Germany.^  The  Jews  were  generally 
assured  in  these  privileges  of  protection  against  riots,  protection 
of  their  property,  exemptions  from  special  taxes,  dispositive  powers 
over  their  property,  a  status  in  court  as  witnesses  which  as 
compared  with  the  unfree  was  a  favored  one,  and  also  protection 
of  their  lives :  from  which  it  is  evident  that  without  such  special 
royal  protection  they  were  rightless ;  they  received  the  status  of 
royal  serfs,  of  whom  the  king  could  fully  dispose.  In  return 
for  the  concession  of  their  charters  of  liberties  the  Jews  were  bound 
to  render  taxes  into  the  royal  exchequer,  in  recompense  for  the 
king's  renunciation  in  such  charters  of  the  powers  he  enjoyed 
under  the  alienage  law,  and  which  since  the  Hohenstauffen  period 
had  constituted  an  independent  regality,  the  "  Judenregal." 
Thence  came  the  expression,  as  a  general  designation  for  the  Jews, 
*'  cameral  "  or  "  exchequer  "  serfs  ("  servi  camere  nostre  "),  which 
was  first  officially  used  in  a  Jewry  statute  of  Frederick  II.  In 
this  expression,  and  in  the  burdensome  tributes  imposed  on  them 
as  a  result  of  this  "cameral"  serfdom, — tributes  collected  not 
only  by  the  kings  but  also  by  the  Territorial  rulers  fitted  out 
by  them  with  the  Jewry  regality,  —  was  evidenced  the  worsened 
condition  which  the  Jews  had  to  bear  with,  following  the  Cru- 
sades; partly  because  of  the  increasing  sharpness  of  religious 
divisions,  partly,  and  especially,  in  consequence  of  economic 
reasons.  As  the  cities  grew  prosperous,  and  the  Christian  city 
population  turned  increasingly  to  trade  and  came  to  see  in  the 
Jews  inconvenient  competitors,  these  lost  their  one-time  monopo- 
listic position  in  wholesale  commerce  and  moneylending,  and 
were  forced  to  resort  to  huckstering  and  usury,  and  to  petty 
trade  in  money,  second-hand  articles,  horses,  and  cattle.  The 
gilds,  too,  and  therewith  many  trades,  remained  closed  to  them ; 
as  also,  of  course,  all  political  rights  in  State  and  commune. 
The  hatred  of  the  Christian  population  found  vent  in  cruel  perse- 
cutions, and  the  unscrupulous  administration  of  the  "Judenregal" 
led  to  ever  more  extreme  legal  restrictions.  Their  liberty  of  domi- 
^  Scherer,  op.  cit.,  75. 
85 


§  12]  THE    LAW    OF    PERSONS  [BoOK   I 

cile  was  abolished,  their  emigration  without  special  license  for- 
hicUlen,  the  property  of  emigrants  and  of  heirless  decedents  con- 
fiscated. They  were  arbitrarily  pawned  and  given  away,  their 
claims  against  debtors  were  annulled  or  scaled.^  The  Roman 
Canonic  inhibition  of  marriages  between  Christians  and  Jews, 
the  assignment  of  Jews'  claims  to  Christians  (as  a  "  cessio  in 
potiorem  "),  and  limitations  upon  choice  of  domicile  came  to  be 
universally  established ;  so  too  the  limited  probative  value  of 
their  testimony  and  of  their  trade  books.  Even  the  advantages 
generally  accorded  them  over  Christians,  such  as  their  privilege 
as  usurers  and  receivers  of  stolen  goods  {infra,  §§  58,  8(3),  had 
something  hateful  about  them  which  contributed  to  the  lowering 
of  their  repute. 

This  complete  dependence  of  the  Jewry  upon  the  Christian 
authorities,  their  "  cameral  "  serfdom,  —  in  view  of  which  it 
signified  little  that  peace  and  protection  were  guaranteed  them 
in  national  peaces  and  special  charters,  in  return  for  cash  pay- 
ments ;  and  the  injustice  and  even  cruelty  of  which  did  not  remain 
wholly  hidden  even  to  the  naive  view  of  the  INIiddle  Ages,  —  men  en- 
deavored toexjjlain  by  a  strange  historical  fable,  which  the  medieval 
law  books  adopted  ("Sachsenspiegel,"  III,  7,  §  3 ;  "Schwaben- 
spiegel,"  Text  G,  260,  3).  The  fable  ran  that  Titus  had  bailed  to 
the  imperial  exchequer  the  Jews  that  survived  the  destruction  of 
Jerusalem.  Their  dependence  had  its  true  basis  in  the  medieval 
right  of  "  aubaine  ",  and  it  could  only  lessen  when  the  views  that 
underlay  that  right  had  been  displaced  by  others  more  hinnane. 

(2)  Modern  Times.  —  This  change  did  not  take  place  until  in 
the  last  centuries,  under  the  influence  of  Rationalism.  Here  also 
French  legislation,  which  by  a  decree  of  1791  had  assured  to  the 
Jews  all  civic  rights  and  made  them  equals  in  all  respects  of  other 
citizens,  was  of  pioneer  influence.  Within  the  area  in  which  the 
Code  Civil  had  authority  these  principles  acquired  authority 
also  in  Germany ;  a  few  of  the  other  German  States,  also,  soon 
followed  this  example,  as  for  example  Prussia  in  its  Jewry  P>dict 
of  March  11,  1812.  The  German  Act  of  Confederation  (Art. 
16)  provided  that  the  Federal  Assembly  should  take  under  con- 
sideration "  how  the  amelioration  of  the  civic  condition  of  adhe- 
rents f)f  the  Jewish  faith  in  Germany  might  be  realized  in  a  manner 
as  uniform  as  possible,  and  how,  in  particular,  the  enjoyment  of 
civic  rights  might  be  secured  and  assured  them  in  the  confederated 
States  in  consideration  of  their  assumption  of  all  civic  duties; 

'  Scherer,  79  et  seq. 

86 


Chap.  Ill  NATURAL   PERSONS  [§  13 

but  until  then  "  —  the  article  continued  —  "  the  rights  already 
granted  the  adherents  of  this  faith  hy  individual  States  of  the 
Federation  shall  be  preserved  to  them."  The  federal  law  here 
promised  was  never  passed.  Indeed,  some  States,  as  e.g.  Bruns- 
wick, did  not  scruple  to  sweep  away  the  betterments  realized 
in  the  French  period,  and  to  introduce  again  the  old,  illiberal 
legal  conditions ;  which  result  was,  it  must  be  admitted,  made 
possible  by  the  calculated  wording  ("  by ",  not  "  in  ")  of 
Article  16.  Nevertheless,  most  of  the  confederated  States  re- 
signed themselves  in  the  course  of  the  century  to  the  repeal  of 
the  old  Jewry  statutes.  Complete  legal  equalization  was  first 
declared,  however,  by  the  federal  statute  of  1869.  The  Tal- 
mud thereby  lost  that  significance  as  an  actually  authoritative 
legal  source  which,  at  least  in  those  States  in  which  the  rabbinic 
jurisdiction  had  not  already  been  abolished  by  special  statutes 
(as  e.g.  in  Prussia  by  the  Edict  of  1812),  it  had  retained  in  the 
rabbinic  courts  that  existed  for  the  trial  of  purely  Jewish  causes. 
The  German  system  of  judicature,  in  authority  since  1879,  no 
longer  recognizes  any  special  Jewish  courts. 

§  13.  Status.  (I)  Status  in  the  Legal  Sense.  —  Status 
("  Stand  ")  was  originally  a  social  conception.  A  universal 
human  impulse  draws  like  and  like  together  and  calls  into 
existence  group-formations  within  society.  Such  strata,  origi- 
nally purely  social,  are  doubtless  lacking  at  no  stage  of  human 
culture.  They  invariably  rest,  in  last  analysis,  upon  a  conviction 
of  the  unequal  worth  of  the  different  elements  of  society.  So 
long  as  the  mode  of  life  and  distribution  of  wealth  are  uniform, 
they  are  little  in  evidence.  The  commonalty,  in  general  still 
socially  homogeneous,  usually  endeavors  all  the  more  strictly 
to  close  its  ranks  to  elements  that  do  not  belong  within  its 
circle.  But  with  rising  cultural  conditions  social  grouping  in- 
creases. The  personal  merits  of  individual  members  of  the  folk, 
and  descent  from  such  preeminent  men,  exert  a  marked  influence 
upon  public  matters ;  the  growing  disparities  in  the  distribution 
of  wealth  divide  the  population  into  rich  and  poor  ;  the  increasing 
complexities  of  occupation  lead  to  a  distinction  of  callings  regarded 
as  suitable  or  unsuitable  to  men's  respective  status. 

This  stratification  of  the  population,  in  itself  merely  social, 
assumes  a  legal  character  as  soon  as  the  social  position  of 
the  individual,  his  membership  in  one  or  another  group,  comes 
to  involve  for  him  definite  legal  consequences.  The  relative  rank 
of  social  classes  becomes  one  of  legal  status,  in  that  legal  prefer- 

87 


§  13]  THE    LAW    OF    PERSONS  [BoOK  I 

ences  are  attributed  to  the  higher  groups,  as  such,  and  to  their 
members,  and  denied  to  the  lower.  Social  groups  become  estates  in 
a  legal  sense  in  that  certain  legal  relations  are  recognized  as  existent 
only  between  the  members  of  a  class,  thus  uniting  these  in  a  legal 
community  distinct  from  non-members.  The  legal  consequences 
springing  from  membership  in  such  an  estate  may  vary  in  nature 
and  extent.  Moreover,  though  the  chief  significance  of  the  system 
of  social  estates  lay,  in  general,  within  the  domain  of  public 
law,  it  also  influenced  the  position  of  the  individual  in  private 
law. 

The  correlation  of  social  estates  reflects  in  its  development 
the  general  progress  of  social  and  economic  relations,  of  which  it 
was  an  expression.  It  is  subjected  to  continual  change.  Side 
by  side  with  old  groupings  new  and  inconsistent  ones  therefore 
frequently  appear,  without  being  able,  at  first,  to  dis])lace  the 
old  ;  and  thus  there  often  result  peculiar  cross  groupings.  The 
legal  delimitation  by  no  means  always  coincides  with  the  cleavage 
lines  of  social,  political,  and  economic  groups.  Not  infrequently 
legal  distinctions  maintain  themselves  in  formal  authority  in 
consequence  of  their  relative  inelasticity ;  notwithstanding  that 
they  ha\'e  been  left  behind  in  the  ceaseless  flux  of  social  changes, 
and  have  thereby  lost  their  essential  justification.  On  the  other 
hand,  the  law  is  generally  late  in  taking  cognizance  of  altered  social 
groupings.  Every  system  of  social  estates  strives  toward  the 
utmost  possible  exclusiveness.  To  status  in  a  legal  sense  a  strict 
delimitation  is  essential.  Birth,  calling,  possessions,  operate  as 
segregating  factors.  Only  the  estates  based  on  birth  are  strictly 
exclusive,  for  only  in  them  is  there  a  permanent  union  of  equal 
fellows ;  they  do  not  necessarily  involve  a  caste-like  exclusiveness. 
For  the  same  reason  the  occupational  and  property  estates  also 
tend  to  acquire  a  heritable  character. 

(II)  The  Old  System  of  Social  Estates:  (1)  The  general  devel- 
opment of  the  system.^  —  At  the  beginning  of  historical  times  a 
homogeneous  class  of  freemen  formed  the  core  of  the  Germanic 
races.  Beside  it,  —  at  least  according  to  the  view  prevailing  up 
to  the  present  day,  —  the  half-free  and  unfree  were  subordinate 
in  number  and  importance.  The  law  of  the  present  day  has, 
with  one  inconsiderable  exception  (infra,  III),  brought  about  a 
complete  abolition  of  all  class  differences.  In  a  certain  sense  it 
has  thus  returned  to  the  starting-point  of  develpoment.     But 

'  See  for  a  brief  sketch  Seelic/cr,  "  Standische  Bildungen  im  deutschen 
Volk"  (rectoral  address,  Leipzig,  1905). 

88 


Chap.  II]  NATURAL   PERSONS  [§  13 

the  twenty  centuries  intervening  are  filled  with  a  bewildering 
wealth  of  class  groupings. 

Beside  the  mass  of  common  freemen,  among  whom  the 
nobility  constituted  originally  a  class  merely  socially  preemi- 
nent, there  existed  even  in  early  Germanic  times  an  unfree  class 
separated  from  the  rest  of  the  population  in  the  sharpest  conceiv- 
able manner.  They  were  not  in  any  sense  members  of  the  legal 
community;  not  persons  in  a  legal  sense,  but  things.  We 
may  therefore  say  that  there  was  herein  embodied  no  class 
differentiation  whatsoever,  inasmuch  as  the  unfree  stood  outside 
the  legal  community.^  But  the  unfree  might  be  manumitted,  and 
emancipation  usually  secured  to  them  half-freedom.  Such  half- 
free  persons,  or  serfs  ("  Horigen  ",  "  Liten  ",  "Aldien"),  were 
capable  of  rights ;  but  they  continued  to  be  marked  off  from  the 
full  freemen  by  the  lack  of  liberty  of  domicile. 

After  the  migrations  of  the  Germanic  races  the  contrast 
between  freedom  and  unfreedom  lost  definiteness,  the  unfree 
securing  legal  personality  and  thereby  becoming  folk-fellows. 
Besides  this,  whole  classes  of  the  unfree  moved  upward,  as 
settled  rent-paying  peasants,  into  the  class  of  the  half-free, 
which  was  thus  notably  increased.  Where  the  old  folk-nobility 
maintained  itself  against  extinction  by  the  kingship,  it  developed 
into  an  estate  superior  also  in  law  to  the  commonalty.  Thus 
there  were  gradually  differentiated  four  blood  estates :  the 
noble,  the  free,  the  half-free  ("  Horige  ",  serfs),  and  the  unfree 
("  Knechte  ").  This  fourfold  legal  hierarchy  of  freedom  found 
visible  expression  in  a  scale  of  varying  wergelds. 

But  development  soon  went  further.  Altered  economic  and 
political  relations  led  in  the  Frankish  period  to  a  transforma- 
tion of  momentous  consequences  of  this  social  organization  of 
the  Germanic  epoch.  The  accumulation  of  riches  in  the  hands 
of  great  landholders,  secular  and  ecclesiastic,  called  into  being 
a  new  aristocracy  of  wealth,  while  the  royal  service  created 
a  new  nobility  of  office.  Two  new  classes  rose  thereby  above 
the  estate  of  the  common  freemen.  They  coalesced  readily, 
inasmuch  as  royal  service  was  rewarded  with  land,  and  they 
wholly  or  partially  absorbed  the  remnants  of  the  old  nobility 
of  blood.  The  increased  wergeld  of  the  royal  officials  gave  them 
also  a  higher  legal  worth.  Although  it  was  not  yet  an  estate 
limited  by  birth,  this  aristocracy  developed  into  such  an  estate 
—  the  estate  of  lords  and  princes  —  in  the  post-Frankish  period, 
^  Heusler,  "Institutionen",  I,  161. 
89 


§  13]  THE    LAW    OF    PERSONS  [BoOK    I 

as  a  result  of  tlie  transformation  of  powers  of  public  office  into 
heritable  rights  of  lordshij)  over  land  and  people  associated  with 
the  possession  of  land.  On  the  other  hand  many  of  the  common 
freemen  sank  into  the  estate  of  serfs,  and  there  met  the  slaves 
who  had  risen  into  it.  For  whoever  was  not  in  a  ])osition  to  pro- 
tect his  own  free  holding,  but  was  forced  to  intrust  it  to  a  richer 
man  and  receive  it  back  as  a  tenancy  for  rent,  thereby  eventually 
lowered  his  personal  status.  And  so,  here  again,  possession  of 
land  called  into  existence,  first  social  and  economic,  and  then 
legal  distinctions. 

To  all  this  yet  another  thing  was  added.  The  Germanic 
common  freeman  had  been  at  once  warrior  and  cultivator  of  the 
soil.  This  ceased  to  be  true  in  Prankish  times.  The  need  of  a 
professionally  trained  mounted  force  created  chivalry  and  the 
estate  of  knights.  This  estate  of  the  knightage  ("  ordo  mili- 
taris  "),  too,  was  at  first  a  purely  social  fellowship  of  all  men 
capable  of  knight  service.  But  as  mounted  service  in  war 
was  as  dear  as  it  was  distinguished,  a  knightly  lineage  was  very 
soon  added  to  the  requirement  of  a  knightly  mode  of  life,  and 
thereby  transformed  a  professional  into  a  blood  estate.  The 
feudal  law  included  in  one  legal  unit  all  persons  of  knightly  birth 
and  calling,  and  graded  them  within  this  unity  in  estates,  accord- 
ing to  their  military  rank.  Distinctions  between  the  status  of 
freedom  and  of  unfreedom  in  the  Territorial  law  did  not  aflFect 
membership  in  this  estate,  notwithstanding  that  they  were  the 
basis  of  gradations  within  it.  Unfrce  persons  found  admission 
to  it,  viz.  the  ministri,  —  the  servitors  of  the  king  and  the  landed 
aristocracy  employed  in  military  service.  So  long,  therefore, 
as  the  distinction  made  by  the  Territorial  law  outweighed  in 
importance  the  unity  that  prevailed  in  the  feudal  law,  the  knight- 
age was  no  status  in  the  sense  of  the  Territorial  law,  and 
the  feudal  law  was  no  law  of  status  but  simply  a  "  Rechts- 
kreis  "  (supra,  p.  .3),  —  the  aggregate  of  the  legal  rules  that  regu- 
lated the  legal  relations  associated  with  feudal  tenancy.  The 
Sachsenspiegel  still  shows  us  this  peculiar  parallel  growth  of 
estates  on  the  double  basis  of  Territorial  and  feudal  law. 
ntimately  the  principles  of  the  latter  came  to  i)revail. 
Persons  of  knightly  birth  separated  themselves  from  all  other 
classes  of  society  as  a  blood  estate,  recognizable  by  their 
peculiar  mode  of  life.  But  within  this  knightly  or  noble  class, 
a  unit  both  in  self-consciousness  and  in  law,  the  distinction 
between    elements   originally  free   and    unfree   continued    to  be 

90 


Chap.  II]  NATURAL   PERSONS  [§  13 

reflected  in  a  division  between  a  higher  and  a  lower  nobihty 
(infra,  III). 

Beside  the  knightly  estate  there  appeared  an  estate  of  burghers 
and  peasants,  whose  development  ran  a  similar  course.  Urban 
occupations,  which  in  the  flourishing  towns  ofi'ered  abundant 
support  through  industry  and  trade  to  an  ever-increasing  stratum 
of  the  population,  brought  within  the  burghal  class  the  most 
diverse  elements  of  the  Territorial  law.  The  principle  "  Luft 
macht  frei  "  {"  free  town  air  makes  free  "Y  wore  down  the  origi- 
nal.  contrasts  and  fused  the  town  population  into  a  legal  unit, 
although  indeed  social  differences,  often  of  great  sharpness,  per- 
sisted or  first  took  form  within  it.  The  burghal  class  also  became 
in  a  legal  sense  a  blood-estate  determined  by  the  occupation  into 
which  one  was  born.  Within  the  town  law  {"  Weichbildrecht  ") 
it  developed  its  own  law  of  status,  and  as  the  citizenry  of  the  State 
grew  later  out  of  the  burghal  community,  so  burghal  ("  biirger- 
liches  ")  law  became  the  common  ("civil  ")  law  of  the  whole  nation. 

Among  the  rural  population,  also,  the  distinctions  of  status 
connected  with  the  original  folk  organization  became  obliterated 
in  course  of  time,  although  they  did  not  disappear  completely, 
nor  everywhere  to  the  same  extent.  In  some  regions  free 
peasants  maintained  themselves  on  free  soil,  though  henceforth 
distinguished  by  their  rustic  life  from  their  erstwhile  fellows 
of  the  knightly  and  burghal  estates.  Socially,  they  constituted 
one  class  with  the  half-free  and  unfree  cultivators  of  the  soil. 
The  peasantry  lived  under  complicated  tenurial  relations :  in  the 
West  partly  bound  to  the  soil,  and  partly  personally  dependent ; 
in  the  eastern  colonized  regions  originally  merely  bound  to  the 
soil,  —  it  was  only  in  the  course  of  the  modern  period  that  per- 
sonal serfdom  ("  Leibeigenschaft  ")  found  in  the  latter  regions 
its  widest  prevalence  as  a  new  form  of  unfreedom. 

Thus  it  came  about  that  the  organization  of  the  folk  as  knights, 
burgesses,  and  peasants,  which  had  reached  perfection  in  the  1100  s 
and  1200  s,  remained  the  essential  basis  of  social  grouping  until 
the  IcSOOs,  and  gradually  displaced  the  older  estates  based  on 
gradations  of  freedom.  And  though  these  newer  estates  did  not 
everywhere  attain  internal  homogeneity,  they  ne^'ertheless  did 
constitute  closed  blood-estates,  which  were  distinguished  from 
one  another  by  their  occupations :    military  (knightly)  life,  civic 

^  Brunner,  "Luft  maclit  frei.  Eine  rechtsgeschichtliche  Unter- 
suehung",  reprint  from  tlie  "  Festgabe  der  Berliner  juristisehen 
FakuUat  fur  O.  Gierke"  (1910). 

91 


§  13]  THE    LAW    OF   PERSONS  [BoOK   I 

industry,  and  rustic  field  work  were  mutually  exclusive  occupa- 
tions in  the  law  of  status.  ^Vlien  mercenary  troops  and  modern 
standing  armies  replaced  the  feudal  array,  the  nobility  lost  their 
character  of  a  solidary  occupational  estate,  notwithstandin<j;  that 
it  continued  very  commonly  the  military  mode  of  life,  and  that 
in  Prussia  it  was  regarded  as  nothing  less  than  the  legal  duty 
of  the  landed  nobility  to  serve  as  officers  in  the  army.  Especially 
in  the  East,  the  nobles  devoted  themselves  as  great  landowners 
to  agriculture,  and  quite  commonly  entered  the  higher  civil  service 
as  well.  JNIoreover,  since  urban  life  involved  from  the  earliest 
times  a  variety  of  occujmtions,  many  statutes,  as  e.g.  the  Prus- 
sian "  Landrecht  ",  treated  these  smaller  occupation  groups  as 
"  estates  ",  establishing  special  rules  for  the  classes  (called  "  es- 
tates ")  of  ofiicers,  civil  servants,  merchants,  artisans,  artists, 
factory  owners,  etc.  There  was  here,  however,  no  question  of 
estates  in  the  legal  sense,  since  such  groups  lacked  all  definite 
delimitation  within  the  general  blood-estate  {supra,  p.  25). 

(2)  Equality  of  Birth.  —  Underlying  all  social  organization 
upon  the  basis  of  a  blood-status  is  the  principle  of  equal  birth. 
Only  when  an  estate  rests  on  equality  of  blood  can  it  constitute 
an  entity,  sharply  delimited,  of  equal-born  fellows.  Since  the 
old  estates  of  the  Territorial  law  were  pure  blood-estates,  the  idea 
of  equal  birth  was  in  them  quite  strictly  enforced.  Comj)lex 
relations  resulted  wherever  dift'erent  social  factors,  each  deter- 
minant of  status,  were  in  play,  and  led  to  cross-stratifications  of 
status.  In  such  cases  there  might  result  a  double  equality  of 
birth,  if  measured  by  dift'erent  standards.  Eor  example,  and  in  par- 
ticular, there  existed,  at  the  height  of  the  medieval  period,  beside 
the  equal-birth  of  the  "  Landrecht  "  the  equal-birth  of  the  feudal 
law.  For  this  reason,  the  doctrine  of  equal  birth  had  much  that 
was  confusing  about  it,  as  the  glossator  of  the  "  Sachsenspiegel  " 
justly  remarks  (on  III,  73,  §  1).  The  consequences  of  equality 
of  birth  in  private  law  made  themselves  felt  in  the  law  of  family 
and  inheritance.  Only  an  equal-born  member  of  the  estate  had 
the  right  —  which  rested  on  kinship  ■ —  of  exercising  guardianship 
over  minors  and  women.  And  only  between  those  c(jual  in  birth 
was  there  a  right  of  inheritance ;  for  as  the  "  Sachsenspiegel  "  puts 
it  (I,  17,  §  1) :  "  Sve  so  dem  anderen  ebenburdich  nich  ne  is,  de 
ne  mach  sin  erve  nicht  nemen  "  ("  When  one  is  not  the  equal  in 
birth  of  another,  he  cannot  take  the  latter 's  heritage  ")•  Equality 
of  l)irth  played  its  most  important  role,  however,  in  the  law  of 
marriage.     Members  of  difVcrcnt  estates  could  not  originally  inter- 

92 


Chap.  II]  NATURAL   PERSOXS  [§  13 

marry  at  all ;  and  later  they  could  at  best  enter  into  no  marriage 
of  full  effect.  The  once  unbridgeable  gulf  between  freedom  and 
unfreedom  still  found  recognition  in  the  provisions  of  certain 
folk-laws  that  imposed  penalty  of  death  upon  free  and  unfree 
unions,  or,  like  the  Salic  Law,  declared  a  woman  who  contracted 
marriage  with  her  slave  to  be  rightless  ("  aspellis  ").  Others 
merely  punished  the  free  party  with  the  loss  of  freedom ;  the 
Ripuarian  folk-law  ordered  that  sword  and  spindle  be  offered 
the  free  woman  who  against  the  will  of  her  kin  took  a  slave  in 
marriage  :  if  she  chose  the  one,  the  slave  was  killed ;  if  the  other, 
she  herself  sank  into  bondage.^ 

Under  the  influence  of  the  Church  legal  validity  was  given, 
in  general,  to  all  marriages  consummated  in  observance  of  the 
prescribed  forms,  and  the  quality  of  legitimate  offspring  to  the 
resulting  issue.  But  marriages  between  those  who  were  not  class 
fellows  remained  unequal  marriages.  The  principle  that  the 
husband's  status  fixed  the  status  of  the  wife  was  applied  only  when 
the  man  was  the  lower  born,  in  which  case  he  drew  the  woman 
down  to  his  own  estate.  On  the  other  hand  a  woman  lower 
born  did  not  by  marriage  rise  to  the  higher  status  of  her  husband. 
As  regards  the  children  the  principle  was  that  they  should  follow 
the  "  worser  hand"  ("Argere  Hand";  "  le  pire  emporte  le 
bon  "),  that  is,  receive  the  status  of  the  lower-born;  so  that  a 
mother  several  times  married  might  have  children  of  the  most 
different  status,  according  to  the  status  of  their  fathers.  At  times, 
indeed,  even  in  Germany  men  maintained  the  principle  of  the 
oldest  Germanic  law,  —  which  moreover  was  the  rule  in  Roman 
law,  —  and  allowed  a  free  woman,  even  though  during  the  con- 
tinuance of  the  marriage  she  necessarily  shared  the  half-free 
or  unfree  status  of  her  husband,  to  transmit  to  her  children  her 
own  natal  freedom  ("  partus  sequitur  ventrem  ",  "  le  ventre 
affranchit  ",  "  the  womb  enfranchises  ").  The  question,  what 
marriages  should  be  recognized  as  of  equal  status  went  to  the  very 
essence  of  the  medieval  law  of  status  and  equal-birth.  And  this 
not  alone  in  regard  to  pri^'ate  law.  For  upon  its  decision  depended 
not  only  priorities  in  inheritance,  but  also  succession  to  the  crown 
and  sovereignty.  And  with  remarkable  although  intelligible 
stubbornness  men  held  fast  at  precisely  this  point  to  the  old  system 
of  estates  of  the  Territorial  law,  at  least  in  theory ;  and  this  even 
after  that  had  already  been  wholly  displaced  by  the  newer 
occupational-estates.  For  example,  as  late  as  the  year  1383  the 
'"Lex  Ribuaria",  58,  18. 
93 


§  13]  THE    LAW    OF    PERSONS  [BoOK   I 

peasants  of  the  Alsatian  village  of  Grosskembs  declared  —  and 
from  the  viewpoint  of  the  old  free-estate  quite  unimpugnably 
—  that  they  were,  as  free  peasants,  the  "  fellows  of  princes  " 
("  fiirsten  genoss  "),  and  could  "  wiben  und  mannen,  on  eygen 
Kit,  wo  wir  wollent  "  ("  marry,  unlike  serfs,  whomsoever  they 
pleased  ") ;  although,  as  Ileuslor  adds,^  doubtless  not  very  many 
peasant-girls  of  Kembs  can  have  attained  a  princely  throne. 
As  late  as  1670  the  Imperial  Chamber  of  Justice  also  regarded 
the  marriage  of  an  earl  with  a  free  peasant  as  a  union  that  did 
not  debase  the  status  and  the  rights  of  the  children,  and  the  Im- 
perial Council  gave  practical  effect  to  the  same  rule  down  to  the 
electoral  capitulations  of  1742. 

In  this  newer  organization  of  society  in  occupational-estates 
the  princii)le  of  equal  birth  was  less  and  less  heeded.  Only  the 
higher  nobility  in  Germany  clung  to  it  (infra,  III,  2).  In  the 
lower  nobility,  on  the  other  hand,  marriages  between  free  burgesses 
and  peasants  seem  to  have  been  treated  as  equal  as  early  as  the 
second  half  of  the  Middle  Ages :  "  Hitter's  Weib  hat  Hitter's 
Recht",  "knight's  wife  has  knight's  law."  Only  in  the  1700s 
were  the  father's  rights  of  status  again  denied,  in  some  regions, 
to  children  of  a  marriage  between  a  noble  and  a  woman  of  an  ig- 
noble class  (a  "  vilis  et  turpis  persona  ").  Where  the  rural  popu- 
lation was  predominantly  unfree,  as  in  eastern  Germany,  it  did 
not  enjoy  equal-birth  with  the  knights  and  burgesses. 

(Ill)  The  Modern  Development:  (1)  Abolition  of  Estates. — 
The  Prussian  "  Landrecht  "  could  still  treat  as  part  of  the  law 
the  system  of  estates  handed  down  from  the  Middle  Ages,  but 
with  the  old  absolute  monarchy  there  fell  in  ruins  the  system  of 
feudal  estates  that  formulated  its  social  and  legal  order.  Frederick 
William  I  and  Frederick  II  attempted  to  realize  the  emancipation 
of  the  peasants  from  personal  serfdom  ("  Leibeigenschaft ") 
though  without  great  success.  Josejjh  II  made  it  a  fact.  Thence- 
forth, not  only  was  the  hereditary  dependence  of  the  rural  popu- 
lation abolished  in  all  the  German  States,  under  the  influence  of 
French  legislation  (in  Prussia  by  the  Edict  of  Oct.  9,  1807),  but 
what  was  more,  as  a  result  of  the  proclamation  of  freedom  of  indus- 
try, and  the  unqualified  opening  of  all  callings,  forms  of  land  tenure, 
and  public  offices  to  all  classes  of  society,  there  was  established 
a  homogeneous  State  citizenship,  within  which  legal  divisions 
no  longer  existed,  however  much  diflVrences  of  social  rank  might 
persist,  and  all  that  these  ])ractically  involved.  Where  there 
^  "lustitutionen",  1,  178. 
94 


Chap.  II]  NATURAL   PERSONS  [§  13 

remained  in  force  the  system  of  special  law  governing  particular 
occupations,  —  as  e.g.  for  military  and  civil  servants,  merchants, 
industrials,  laborers,  etc.,  —  or  where  peculiar  rules  of  law  per- 
sisted as  regarded  certain  kinds  of  property,  —  as  e.g.  for  "  fidei- 
commissa  "  and  peasant  holdings,  —  there  was,  as  has  already 
been  mentioned  (supra,  p.  92),  no  question  of  rights  of  status  in 
the  old  sense.  Only  the  Bavarian  Nobility  Edict  of  1818,  still 
in  legal  force,  reserved  to  the  nobility  the  creation  of  family  "  fidei 
commissa."  It  is  therefore  opposed  to  the  legal  order  established 
everywdiere  else  in  the  course  of  the  1800  s,  and  which  the  Prussian 
Constitution  (Art.  4)  laid  down  in  the  laconic  rule  :  "No  privileges 
of  estate  shall  be  recognized." 

(2)  The  High  Nobility.^  —  Despite  all  this,  the  movement  in 
Germany  directed  toward  the  destruction  of  rights  of  status  has 
not  realized  a  complete  triumph :  even  the  present  German  law 
still  knows  one  legally  privileged  estate,  the  high  nobility. 

(A)  Origin  akd  extent.  —  Within  the  estate  of  knights 
or  nobles  there  was  preserved,  as  already  remarked,  a  remem- 
brance of  the  unfree  origin  of  the  servitary  families  which  in  fact 
constituted  the  chief  element  of  the  knightage.  The  families 
of  original  free  origin  felt  themselves  superior  to  these;  all  the 
more  so  in  that  they  enjoyed,  as  Territorial  princes  and  estates 
of  the  Empire,  a  political  position  superior  to  that  of  the  other 
knights.  Accordingly,  they  prohibited  marriages  of  their  mem- 
bers with  women  of  families  descended  from  the  ministri.  This 
highest  stratum  of  the  nobility  thus  segregated  itself  as  a  special 
blood  estate  within  the  general  estate  of  the  nobility.  The 
Schwabenspiegel  (G.  57)  —  unlike  the  Sachsenspiegel,  which  still 
regarded  as  equal-born  all  who  were  freemen  under  the  "  Land- 
recht  "  —  already  distinguished  the  two  noble  classes  of  "  semper  "- 
freemen  (also  known  as  "Hochfrei",  "high-free",  and  "Edle", 
"noble")  and  the  ordinary  or  "  Mittel  "  freemen,  and  defined  the 
descent  necessary  for  inclusion  in  the  former  class  by  the  rule : 
"  ez  ist  nieman  semper  fri  wan  des  vatter  und  mutter  und  der 


^  Rehm,  "Modernes  Furstenrecht"  (1904);   Hauptmann,  "Das  Eben- 


XXVIII  (1908),  193  d  .scg. ;  G.  Meyer,  "Lelirbueh  des  deiitsohen  Staats- 
rechts",  ed.  by  Anschiitz  (6th  ed.  1905).  266  el  seq.,  and  829  et  scg., 
Goldschmidt,  ""Die  Sonderstelliing  der  Mediatisierten  Preussens  naeh 
dem  offentlichen  Rechte  Preussens  und  des  deutschen  Reichs",  Ko.  81 
(1909)  of  Schuckitig's  "Arbeiten";  G.  Bessler,  "t)ber  die  Stellung  des 
biirgerlichen  Gesetzbuehs  Deutschlands  zu  dem  Familienreehle  des 
hohen  Adels.     Eine  Denkschrif t "  (1887,  1911). 

95 


§  13]  THE    LAW    OF    PERSONS  [BoOK   I 

vater  und  mutter  semper  fri  warcn  "  ("  a  person  is  *  semper  '-free 
when  his  father  and  mother  and  their  fathers  and  mothers  were 
*  semper '-free  ").  This  o;ra(hition  of  ranks  found  particularly 
clear  expression  in  the  fact  that  numerous  cathedral  chai)ters, 
religious  establishments,  and  cloisters  belonging  to  the  free-estate 
received  only  members  of  noble,  free-born  families,  and  not  de- 
scendants of  ministri.'^  In  time,  however,  many  houses  that  had  a 
servitory  origin  rose  to  the  estate  of  the  high  nobility,  inasmuch 
as  the  emperors,  from  the  end  of  the  loOO  s  onward,  no  longer  be- 
stowed the  earldoms  that  escheated  to  them  upon  the  old  ruling 
families  exclusively,  but  also  on  persons  of  the  lower  nobility,  who 
thereby  acquired  seat  and  vote  in  the  Imperial  Council  of  Princes 
or  in  one  of  the  Colleges  of  Earls.  The  bond  unifying  this  estate 
was  therefore  not  one  of  kinship  but  one  of  a  political  nature ;  it 
was  not  likeness  of  descent  but  a  similar  position  under  the  public 
law.  And  therefore,  as  was  definitely  settled  in  1G54,  the  emperor 
could  raise  to  the  estate  of  the  high  nobility  only  such  houses 
as  possessed  or  received  an  "  immediate  "  imperial  territory  (a 
territory  immediately  subject  to  the  emperor)  as  the  basis  of 
their  privileges  as  an  estate  of  the  Empire.  IMerely  personal, 
and  therefore  temporary,  admission  (in  which  connection  men 
spoke  of  "  Personalisten  "),  or  admission  solely  on  the  ground  of 
office,  as  in  the  case  of  the  Pappenheims,  was  not  sufficient.  As 
little  did  the  bestowal  of  an  imperial  ])rincely  title  suffice,  inas- 
much as  the  title  borne  by  the  houses  that  were  estates  of  the 
Empire  ("  Fiirst  ",  "  Graf  ")  was  not  of  consequence,  and  con- 
sequently the  difference  between  imperial  princedoms  and  earl- 
doms, or  old  and  new  princely  families,  was  also  of  no  essential 
significance.  Only  at  the  end  of  the  Empire  was  the  requirement 
of  political  rule  over  an  "  immediate  "  imperial  territory  in  some 
cases  disregarded,  and  the  continued  enjoyment  of  the  personal 
status  of  an  estate  of  the  Empire  regarded  as  sufficient  in  favor  of 
a  few  families  (Stolberg,  Schonberg,  Fugger,  Giech),  even  when 
their  territories  were  subject  to  the  sovereignty  of  another  estate 
of  the  Empire.  With  the  dissolution  of  the  Empire  the  constitu- 
tional basis  of  the  estate  of  the  high-nobility  disappeared,  and  all 
those  of  its  members  who  failed  to  attain  sovereignty  as  princes 
of  the  Confederation  of  the  Rhine  should  by  right  have  lost  the 

'Recently  established  by  A.  Schnllc,  "Dor  Adel  und  die  doutsche 
Kirf'hedes  Mittelalters",  Nos.  63-64  (1910)  of  Stulzs  "Untcrsuohiuifjcn." 
Compare  the  compendious  essay  of  Wermiiujhoff,  "Standische  Problome  in 
der  deutschen  Kirche  des  Mittelalters",  in  Z.  Sav.  St.  R.  G.,  Kanon.  Abt., 
I  (1911),  33-67. 

96 


Chap.  II]  NATURAL  PERSONS  [§  13 

privileges  of  status  based  upon  their  former  position  as  imperial 
estates,  sinking  into  the  general  mass  of  subjects.  The  Consti- 
tution of  that  Confederation,  however,  assured  to  these  so-called 
"  mediatized  "  members  an  equality  with  the  princely  houses  that 
had  been  in  the  past,  and  had  now  again  become,  sovereign ;  and 
this  guaranty  was  repeated  by  Art.  14  of  the  Constitution  of  the 
German  Confederation,  whose  provisions  received  statutory  force 
and  were  carried  into  practical  effect  by  proclamation  in  the  in- 
dividual States,  supplemented  by  local  legislative  regulations. 
There  the  matter  rested.  For  though  all  privileges  of  status 
were  declared  abolished  in  many  States  (as  e.g.  Prussia,  supra, 
p.  94)  in  consequence  of  the  popular  movements  of  1848,  the 
reactionary  movement  of  the  years  immediately  following  led, 
here  also,  to  a  complete  reestablishment  of  the  legal  position 
guaranteed  by  the  constitution  of  the  Confederation  to  those 
rulers  who  were  formerly  estates  of  the  Empire.  In  Prussia  the 
method  chosen  to  effect  this  was  an  official  proclamation  of  the 
Constitution  in  statutory  form.^  The  Civil  Code  nowhere  recog- 
nizes in  its  text  the  persistence  of  a  law  of  status  variant  from 
the  general  civil  law,  but  the  Introductory  Statute  (57,  58)  has 
sanctioned  the  recognition  of  the  high-nobility  by  State  law  as  a 
special  estate. 

At  the  same  time  the  extent  of  this  single  privileged  estate  of 
to-day  is  not  great,  because  entrance  to  it  has  been  fast  closed  since 
the  end  of  the  old  German  Empire,  inasmuch  as  its  legal  basis, 
which  rested  solely  upon  the  Constitution  of  that  Empire,  cannot 
be  created  anew.  To  the  high-nobility  there  belong  only  the 
German  princely  houses,  —  to  which  the  dj'nasties  dispossessed 
in  1866,  the  princely  house  of  Hohenzollern,  and  since  1904  the 
ducal-principality  of  Holstein  have  been  in  many  respects  assimi- 
lated, —  and  noble  families  that  were  estates  of  the  Empire  and 
were  "  mediatized "  in  1806.  Of  such  families  there  are  at 
present  in  Germany  and  Austria  fifty-four,  which  are  further 
divided  into  one  hundred  and  eight  branches.  The  peculiar 
position  of  the  high-nobility  in  private  law  is  seen  in  the  autonomy 
it  enjoys,  and  in  its  principle  of  equal  birth. 

(B)   AuTONOMY.2  —  Beginning    with    the    1300  s    it    became 

_  '  Cf.  Anschiilz,  "Die  Verfassungsurkunde  fiir  den  Preussisehen  Staat. 
Ein  Kommentar  fiir  Wissensohaft  und  Praxis,"  I  (1912),  107  et  seq. 

2  honing,  "Die  Autonomie  der  standesherrliohen  Hauser  Deutschlands 
nach  dem  Rechte  der  Gegenwart"  (1905);  Ocrtmnnn,  "Die  standes- 
herrliche  Autonomie  im  heutigen  deutschen  biirgerliehen  Reelit"  (1905); 
Schvcking,  Art.  "Autonomie"  in  v.  Stennel-Fleischmann,  "Worterbuch", 
I  (2d  ed.  1911),  290-298. 

.      97 


§  131  THE    LAW    OF    PERSONS  [BoOK   T 

customary  in  the  houses  that  ranked  as  imperial  estates  to  formu- 
late in  family  "  statutes  "  and  "  compacts  "  regulations  concern- 
ing property  and  family  relations  ;  regulations  whose  common  con- 
tent was  directed  to  the  permanent  and  secure  establishment  of  a 
firmly  grounded  dynastic  power,  and  therefore  above  all  else 
to  the  prevention  of  a  parcellation  of  the  land.  There  originated 
in  this  way  a  private  law  peculiar  to  the  high  nobility  ("  Privat- 
fiirstenrecht  ").  Its  peculiarity  consisted  in  the  fact  that  Ger- 
man legal  principles  which  were  elsewhere  forced  to  yield  to  the 
alien  law  were  maintained  intact  on  many  points  in  this  special 
class  law  for  the  high  nobility,  notably  in  the  regulation  of  the 
order  of  succession.  The  princi})les  of  this  "  Privatfiirstenrecht  " 
had  the  quality  of  an  objective  law  binding  third  parties.  No 
definite  form  of  expression  was  developed  for  this  right  of  private 
enactment.  But  even  in  the  case  of  regulations  issued  of  his 
own  motion  by  the  head  of  the  house,  the  assent  of  all  the  living 
agnates  was  customarily  necessary ;  only  for  such  assenting 
agnates  and  their  descendants  did  the  regulations  have  binding 
force.  The  powers  of  the  family  head  to  act  for  all  its  members, 
every  agnate  possessed  within  the  limits  of  family  law  ("  Haus- 
recht  ")  over  his  particular  line  of  descendants.  The  right  of 
autonomous  enactment  was  no  unlimited  legislative  power: 
aside  from  possibly  contradictory  rights  of  the  emperor,  it  was 
limited  by  the  end  it  sought,  namely  the  preservation  of  the 
"  splendor  familiie."  The  rules  of  the  "  Privatfiirstenrecht  " 
had  primary  reference,  therefore,  to  succession,  membership 
in  the  family,  equality  of  birth,  misalliances,  dowry  of  women 
and  provisions  for  posthumous  sons,  guardianships,  family  "  fidei- 
commissa  ",  and  the  like.  The  noble  house  itself,  regarded  as  a 
corporation,  has  been  assumed  by  many  writers  —  notably  by 
Beseler  and  Gierke,  as  well  as  by  an  opinion  of  the  college  of 
Prussian  crown-syndics  of  1876  —  to  be  the  subject  of  this  power 
of  private  enactment  (cf.  §  43,  infra).  But  no  convincing  reasons 
exist  for  this  view.  One  may  equally  well  regard  the  family 
head  as  the  subject  of  such  enacting-power,  —  only  he  must  act 
in  the  name,  and  where  it  is  so  provided  only  with  the  concurrence, 
of  the  agnates ;  just  as  a  constitutional  ruler  is  a  legislator,  although 
he  is  bound  by  the  cooperation  of  the  people's  representatives. 
At  any  rate,  no  common  law  authority  can  be  ascribed  to  the 
principle  that  a  family  of  the  high  nobility  possesses  legal  per- 
sonality. The  constitution  of  the  German  Confederation  in  the 
Article  (14)  already  cited,  guaranteed  to  houses  that  had  been 

98 


Chap.  II]  NATURAL   PERSONS  [§  13 

estates  of  the  Empire  the  continuance  of  their  autonomy  in  accord 
with  the  principles  of  the  former  German  Constitution;  thus 
binding  all  the  German  States,  under  principles  of  international 
law,  to  the  recognition  of  the  "  Privatfiirstenrecht."  With  the 
end  of  the  German  Confederation  it  lost  the  sanction  of  inter- 
national law  which  it  had  thus  acquired.  Since  then  the 
"  Privatfiirstenrecht "  and  rights  of  autonomous  enactment 
have  rested  solely  on  State  statutes  regulative  of  the  matter,  and 
can  be  altered  or  abolished  by  State  legislation.  This  condition 
of  the  law  is  recognized  in  the  Introductory  Act  of  the  new 
Civil  Code  in  the  provision  that  the  right  of  autonomy  "  as 
respects  family  regulations  and  property"  shall  be  enjoyed  by 
houses  formerly  estates  of  the  Empire  in  the  measure  allowed  by 
State  legislation  (§  58).  On  the  other  hand,  it  has  left  the  au- 
tonomy of  the  reigning  State  dynasties  intact,  and  under  the 
guaranty  of  imperial  law  (Art.  57). 

(C)  Equality  of  birth.i  — It  is  only  in  the  marriage  law 
of  the  German  high-nobility  that  the  principle  of  equal  birth  has 
maintained  itself  in  its  old-time  strictness.  In  it,  equality  of 
status  has  remained  to  the  present  day  the  precondition  of  a 
perfectly  valid  marriage.  A  marriage  beneath  one's  status  is  a 
misalliance  {"  disparagium "),  through  which  the  lower-born 
spouse  cannot  enter  the  high-noble  status.  The  lower-born  woman, 
in  particular,  acquires  neither  the  name  nor  the  arms  of  the 
man,  nor  further  claims  to  property-preferences  under  the  law  of 
his  estate  and  house ;  and  the  children,  in  accord  with  the 
medieval  principle,  follow  the  "  worser  "  ("  argere  ")  hand,  and 
therefore,  since  they  too  have  no  part  in  the  rights  and  prop- 
erty of  the  house,  are  excluded,  in  the  reigning  princely  houses, 
from  succession  to  the  throne.  When  the  consequences  of  mis- 
alliance are  contractually  regulated,  and  the  claims  of  the  wife 
and  children  thereby  assured,  such  a  marriage  is  given  the  name 
of  a  "  left-handed  "  marriage,  in  reference  to  the  usual  form  of  the 
ceremony  in  such  cases  ;  and  also  "  morganatic  ",  because  merely 
a  morgive  is  set  aside  for  the  wife  instead  of  the  otherwise  cus- 
tomary dower  {infra,  §§  94,  95).  j^he  left-handed  marriage 
appears  to  be  a  development  of  Germanic  concubinage  (infro, 
§  99).  Developed  first  in  Italy,  and  there  known  also  as  "  matri- 
monium   ad   legem   salicam  ",  it   enjoyed   validity  in   Germany 

'  Aht,  "MJssheiraten  in  den  doutsehen  Fiirstenliausorn  unter  besondoror 
Beriicksichtigung  der  standoshorrliehen  Familien",  No.  VII,  1  (1911) 
of  Beyerle's  "  Deutschrechtliche  Beitrage." 

99 


§  13]  THE    LAW    OF    PEESONS  [PoOK    I 

after  the  Reception  as  an  institute  of  the  common  law,  and 
as  an  essential  {)art  of  the  "  Prix  atfiirstenrecht  "  still  has  posi- 
tive authority  to-day.  Outside  of  the  high-nobility  it  can  no 
longer  occur,  since  it  presupposes  inequality  of  status.         '    ' 

Just  what,  however,  are  to  be  accounted  the  legal  requisites 
of  an  equal  marriage  between  families  of  the  high  nobility  is  a 
much  debated  question.  In  recent  years  this  has  been  studied 
with  especially  great  e.xhaustiveness,  as  the  result  of  certain 
protracted  contests  regarding  succession  to  the  throne  in  Lippe 
and  Oldenburg.  In  the  light  of  the  latest  researches  it  seems 
permissible  to  assume  that  in  the  application  of  the  principle  of 
equal  birth  in  these  houses,  decisive  influence  has  been  exercised 
by  their  varied  historical  origins,  which  has  made  impossible  a 
customary  law  controlling  without  exception  the  entire  estate ; 
notwiihstanriing  that  the  existence  of  such  has  frequently  been 
asserted.^  The  princely  houses  of  old  free  origin,  whether  they 
bore  titles  of  imperial  princedoms  or  imperial  earldoms,  whether 
their  princely  titles  were  old  or  modern,  clung  to  the  principle,  — 
always  adhered  to  by  them  in  practice,  and  often  embodied  in 
statutes,  —  that  only  marriages  among  their  own  members, 
and  members  of  other  houses  admitted  to  the  estate  of  the  high- 
nobility,  were  "  equal."  And  hence  the  legal  rule  that  only  a 
marriage  between  persons  belonging  to  the  high-nobility  is 
"  equal  "  —  a  principle  often  adopted,  moreover,  in  constitu- 
tional documents  —  still  holds  good  to-day  for  the  dynasties 
descended  from  these  houses  and  still  ruling,  as  well  as  for  their 
equals  dethroned  in  the  1800  s.  Foreign  Christian  princely  houses, 
possessing  rights  of  sovereignty  recognized  in  international  law, 
are  regarded  as  equals  of  German  princely  houses." 

On  the  other  hand,  this  strict  principle  of  equal  birth,  which, 
in  particular,  denies  such  equality  to  the  lower  nobility,  acquired 

1  Abt,  op.  cit.,  91  et  scq.,  attacks  this  view,  wliich  is  championed  by 
Hauptmann  (above)  and  emphasizes  the  historical  origins  of  the  respec- 
tive houses.  Abt  assumes  for  the  whole  body  of  the  mediatized  higher 
nobility,  in  marriages  with  other  Germans  ("  Inlandern"),  a  rule  of  cu.s- 
tomary  law  in  accord  with  which  only  marriages  between  high  nobles  and 
commoners  are  regarded  as  misalliances. 

2  In  connection  with  the  well-known  plan  of  a  marriage  })etween  Prince 
William  of  Prussia,  later  Emperor  and  King  William  1,  and  Princess 
Elisa  Radziwill,  tlie  question  of  tlie  equal  rank  ("  KhenhiirtigktMt")  of  the 
princely  house  of  Radziwill  was  exhaustively  (iiscussed,  and  despite  the 
affirmative  declaration  of  Savigny,  K.  F.  Eichhorn,  Lancizolle,  and  Count 
Anton  Stolberg,  was  eventually  answered  in  the  negative,  possibly  be- 
cause the  division  of  Poland  had  made  an  end  of  the  actual  sovereignty 
of  the  Polish  princes  of  the  Empire.  Cf.  Hennig,  "Elisa  Radziwill" 
(1911). 

100 


Chap.  II]  NATURAL   PERSONS  [§  13 

no  authority  whatever  as  regarded  the  other  high-noble  famihes, 
or  at  least  no  common  law  validity,  notwithstanding  that  the 
contrary  has  been  asserted  by  numerous  scholars  following  the 
example  of  Piitter/  and  is  even  to-day  defended  by  the  parti- 
sans of  Schaumburg-Lippe.  The  idea  of  holding  marriages  with 
women  of  the  lower  nobility  to  be  misalliances  was  far  from  the 
mind  of  the  families  of  the  high-nobilit\'  descended  from  the 
imperial  ministri,  since  they  themsehes  had  formerly  belonged 
to  those  circles,  and  had  from  earliest  times  taken  from  them 
their  wives.  They  practised  this  custom,  moreover,  without 
hesitation  throughout  the  whole  of  the  1700  s,  and  accordingly  the 
Imperial  Chamber  of  Justice  in  a  judgment  given  in  1773  ex- 
pressed the  view,  the  only  view  historically  justified,  that  the 
strict  principle  of  equal  birth  did  not  hold  for  the  lower  strata 
of  the  high-nobility,  in  which,  on  the  contrary,  the  equality  of 
the  lower  nobility  was  recognized.^  The  electoral  capitulation 
of  1742  also  provided  that  onh^  marriages  with  non-nobles  were 
unequal  under  the  common  law.  To  be  sure,  nothing  need  pre- 
vent that  in  a  particular  house  variant  and  stricter  principles 
should  be  regarded  as  binding  by  usage,  or  established  in  the 
dynastic  law.  Whether  this  were  so  might  be  contestable  in  a 
specific  case ;  but  the  common  law  authority  of  the  strict  prin- 
ciple was  again  rejected  by  the  Imperial  Court  in  its  two  decisions 
of  June  22,  1897,  and  October  25,  1905,  in  the  matter  of  the  con- 
tested succession  to  the  Lippe  throne. 

That  the  doctrine  of  equal  birth,  the  most  important  part  in 
practice  of  the  law  of  the  high-noble  estate,  could  still  be  the 
occasion  at  the  present  day  of  lawsuits  lasting  for  decades,  to 
some  extent  alarming  and  of  serious  political  consequences,  clearl}'- 
shows  that  the  peculiar  position  of  the  high-nobility,  spared  by 
even  the  most  modern  legislation,  is  an  exception  contradictory 
of  the  most  fundamental  legal  conceptions  of  modern  Germany. 
And  only  in  Germany  and  Austria  (to  be  sure,  also  in  Russia) 
has  this  strict  law  of  equal  birth  been  able  to  develop  and  main- 
tain itself.  Neither  to  the  older  nor  present-day  English  law, 
nor  to  the  monarchical  public  law  of  the  ancient  regime  in  France, 
was  it  or  is  it  known.  In  contrast  to  the  unyielding  and  fearful 
attitude  of  their  German  class-fellows,  — an  attitude  doubtless  ex- 
plainable only  by  German  provincialism,  —  the  regnant  houses  of 

'  "tJber  Missheiraten  deutseher  Fiirsten  und  Grafen"  (179G). 
"^  Anschutz,   "Das  Reichskammergerieht  und  die  Ebenbiirtigkeit  des 
niederen  Adels",  in  Z\  K.  G.,  XXVII  (190G),  172-190. 

101 


§  13]  THE    LAW    OF    PERSONS  [BoOK   I 

those  lands  did  not  consider  the  contracting  of  unions  with  their 
subjects  derogatory  to  their  own  dignity. 

§  14.  Honor.^  (I)  Honor  in  the  Legal  Sense.  —  Whereas  the 
division  of  society  into  estates  rests  on  tlie  attribution  to  different 
groups  of  society  of  a  different  legal  worth,  the  legal  influence  of 
the  conception  of  honor  turns  upon  the  legal  evaluation  of  the 
individual,  whether  in  his  relation  to  the  nation  as  a  whole  or  to 
his  class-fellows.  Like  status,  honor  was,  to  begin  with,  purely 
a  social  conception.  Within  social  usage  there  develops,  as 
Heusler  shows,-  a  public  opinion  concerning  the  respectability  of 
certain  conditions,  qualities,  callings,  and  the  like  which  denies  to 
persons  affected  by  these  the  respect  otherwise  shown  to  every 
man  as  such.  They  are  not  regarded  by  society  as  of  unblem- 
ished repute  ("voU").  But  only  he  who  enjoys  unqualified  per- 
sonal repute  has  "honor";  and  since  these  social  appraisements 
attain  in  time  an  influence  so  strong  that  the  law  also  must  adjust 
itself  to  them,  legal  consequences  attach  to  the  lessening  or  com- 
plete denial  of  social  esteem.  It  is  true  that  the  social  and  the 
legal  conception  of  honor  do  not  always  coincide ;  and  from  this 
there  may  then  result  very  unsatisfactory  conditions.  Thus  honor 
became  a  legal  institute,  and  as  such  also  became  more  or  less 
determinant  of  the  position  of  the  individual  in  private  law. 

(II)  The  Older  Law.  —  Germanic  law  seems  from  the  beginning 
to  have  laid  very  great  weight  upon  the  possession  of  full  honor. 

(1)  Exact  information  is  lacking  as  regards  the  oldest  law. 
But  when  Tacitus  ("Germ."  G)  reports  that  one  who  had  cravenly 
thrown  away  his  shield  in  battle  was  excluded  from  sacrifices  and 
the  popular  assembly ;  and  when  it  is  declared  in  the  Carolingian 
legislation,  —  doubtless  in  accord  with  views  dominant  since 
the  earliest  period,  —  that  a  wrongdoer  condemned  to  death  but 
pardoned  could  give  no  testimony,  nor  be  a  skevin,  nor  clear  him- 
self by  oath  of  criminations,  but  must  submit  to  the  ordeal,  one 
may  safely  assume  that  the  richly  developed  growth  of  the  medieval 
law  of  honor  goes  back  in  its  foundations  into  primitive  Germanic 
time. 

(2)  The  Medieval  Law.  —  The  German  sources  of  the  time  of 
the  Law-Books,  especially  the  Saxon,  are  distinguished  from  the 
older  sources  by  a  great  wealth  of  notices  concerning  the  different 

^  Budde,  "Ober  Rechtlosipkcit,  Ehrlosigkeit  und  Echtlosigkeit" 
(1842);  Schner,  "Die  altdeutschen  Fochtor  und  Spiolleute"  (1901); 
Frcnadorff,  "Das  Zunftroclit  insbosondero  Norddeulschlands  und  die 
Handwcrkorohre",  in  Hans.  G.  B.,  1007,  1-89. 

2  Heusler,  "Institutioni-n",  I,  191. 

102 


Chap.  II]  NATURAL   PERSONS  [§  14 

varieties  of  honor,  and  the  legal  consequences  of  their  impair- 
ment. In  this  respect  they  notably  surpass  those  of  other 
countries ;  so  much  so  that  the  elaboration  of  a  law  of  honor, 
carried  into  details,  seems  to  have  been  peculiar  to  Germany. 
The  lack  of  a  uniform,  technical  phraseology  is  here  especially 
inconvenient.  Attempts  to  unite  all  existing  original  data  into 
a  consistent  system  have,  up  to  the  present,  led  to  no  satisfying 
result :  unquestionably  differences  existed,  of  time  and  place, 
and  the  use  of  terms  .was  very  unstable.  The  results  of  Heusler  ^ 
recommend  themselves  by  inherent  probability  and  a  fairly  wide 
basis  in  the  sources,  and  have  been  adopted  with  certain  desirable 
modifications  by  Amira  ^  and  Brunner,^  whereas  Gierke  ^  adopts 
views  that  are  in  many  respects  different. 

We  may  disregard  "  Echtlosigkeit  ",  —  i.e.  complete  loss  of 
capacity  for  rights,  originally  through  being  put  outside  the  peace 
("  Friedlosigkeit  ",  social  outlawry)  and  later  through  outlawry 
as  judicial  process  ("  Oberacht  "), — which  still  occurs,  though 
only  rarely,  in  the  medieval  sources.  It  involved,  particularly, 
incapacity  for  the  contraction  of  a  valid  marriage,  but  had  noth- 
ing to  do,  in  itself,  with  "  honor  " ;  out  of  it  civil  death  finally 
developed  (supra,  p.  46).  There  were  two  other  varieties  of 
limited  capacity  for  rights  whose  limitations  were  due  to  defective 
honor,  and  which  were  different  both  in  their  preconditions  and 
consequences : 

(A)  "  Rechtlosigkeit  "  (rightlessness),  due  to  dishonor- 
able ACTS. — This  attached  to  persons  who  were  proved  guilty  of 
such  acts  as  made  them  impossible  among  reputable  men.  Here 
belonged : 

(a)  Those  who  had  suffered  condemnation  to  a  degrading  pun- 
ishment, that  is,  a  punishment  of  "  head  and  hand  "  ("  zu  Hals 
und  Hand  ")  or  "  skin  and  hair  "  ("  Haut  und  Haar  "  =  "  hilt- 
an-hair "),  particularly  for  larceny  and  robbery  but  also  for 
other  more  opprobrious  misdeeds.  The  decisive  thing  here  was 
the  condemnation,  and  the  notoriety  thereby  effected ;  that  the 
punishment  may  have  been  escaped  by  settlement  or  composition 
was  not  considered. 

(6)  Those  who  had  committed  a  deed  which  betrayed  a  base 
or  depraved  disposition,  especially  breaches  of  faith,  lost  their 
honor,  and  therewith  their  full  capacity'  for  rights,  even  though 
no  condemnation  was  suffered. 

»  Heusler,  "  Institutioneu  ",  190-199.         ^  "Reeht",  91. 
8"Gruadzuge"  (5th  ed.),  192.  <  Privatreeht",  I,  416-433. 

103 


§  14]  THE    LAW    OF   PERSONS  [BoOK    I 

The  sources  designate  both  these  categories,  which  in  part  evi- 
dently overhipped,  now  as  "  rightlcss  ",  now  as  "  honorless  ", 
without  any  sharp  distinction.  The  opinion  of  Heusler  ^  that 
"  honorless  "  ("  ehrlose  ")  was  the  technical  designation  for  the 
second  group,  appears  to  be  unfounded.  Commonly,  too,  men 
spoke  of  "  rightlessness  and  honorlessness  "  together. 

(B)  "  Rechtlosigkeit  "  due  to  personal  relations  or 
SOCIAL  callings. — To  designate  these  the  sources  employ  the 
expressions  "  Unechtheit  "  and  "  Unehrlichkeit  "  {"  illegitimacy  ", 
"dishonor"). 

(a)  Those  horn  out  of  ivedlock,  whom  "  man  unecht  seget  von 
bort  "  ("  who  are  called  illegitimate  by  birth  ",  —  Sachsenspiegel, 
III,  28,  §  1).  In  contrast  with  the  generally  prevailing  prin- 
ciples of  Germanic  law,  but  in  accord  with  medieval  views  influ- 
enced by  the  Church,  such  persons  were  denied  civil  honor, 
and  finally,  in  consequence  of  their  lack  of  all  family  ties,  were 
burdened  with  complete  "  Rechtlosigkeit  "  (infra,  §  99). 

(6)  Further,  those  persons  who  led  a  dishonorable  life  in  plying 
an  opprobrious  or  ignominious  trade,  whom  "  man  unecht  seget  von 
ammechte  "  ("  who  are  called  illegitimate  by  trade  "),  —  that  is, 
minstrels  in  the  strict  sense ;  and  also  "  the  whole  motley  and 
ever  restless  troop  of  all  those  whom  men  called  '  varende  '  or 
'  gernde  diet  '  (itinerant  or  begging  people)  " :  ^  jugglers,  con- 
jurers, dancers,  streetsingers,  and  itinerant  minstrels  and  poets ; 
vagabond  apprentices,  students,  and  priests ;  itinerant  fencing 
masters,  mercenaries,  begging  gypsies,  wandering  comedians,  and 
knife-grinders.  At  the  same  time  distinctions  were  doubtless 
made  between  these  different  classes ;  indeed,  many  of  them 
joined  in  associations  and  gilds,  and  obtained  for  these  legal 
recognition  and  independent  rights  of  judicature.  Thus  arose 
the  various  pipers'  brotherhoods,  the  fencers'  gilds,  pirate-bands, 
etc.  Under  the  influence  of  the  craft  system,  trades  and  callings 
in  themselves  dignified  came  to  bear  a  stigma  in  society  which 
made  their  members  appear  as  "  unworthy  and  iniclean  sub- 
jects " ;  such  as  shepherds,  millers,  linen-weavers,  tailors,  barl)er- 
surgeons,  jailers,  especially  the  hangmen  and  headsmen,  cloaca 
sweeps,  and  gutter  scourers. 

"  Rechtlose  "  and  "  ehrlose  ",  as  well  as  "  unechte  "  persons, 
were  excluded  from  all  judicial  procedure,  —  they  could  not 
be  skevins,  judges,  witnesses,  or  spokesmen.     They  were  all  both 

'  "Institutionen",  I,  196  ct  seq. 

2  Schaer,  "Die  altdcutsehcn  Fochler  und  Spielleute"  (1901),  87. 

104 


Chap.  II]  NATURAL   PERSONS  [§  14 

actively  and  passively  incapable  of  guardianship,  inheritance 
rights,  and  rights  of  feudal  tenure.  More  than  this,  the 
"  Ehrlosen  ",  since  they  had  sacrificed  their  religious  faith  to  their 
infamous  conduct,  were  also  incapable  of  oath  and  hence  could 
defend  themselves  only  in  judicial  combat,  whereas  this  was  not 
so  of  the  "  Unechten  ",  who  at  worst  were  not  fellows  of  thieves 
and  robbers.  They  were  all  excluded  from  public  offices,  were 
not  received  into  the  crafts,  nor  ordained,  nor  buried  in  hallowed 
places.  Finally,  the  lesser  legal  worth  of  all  found  expression 
in  the  fact  that  although  offenses  against  them  were  possible 
and  punishable,  —  though  indeed  visited  only  with  relatively 
slight  punishment,  —  nevertheless,  they  had  no  wergeld  and  were 
conceded  only  a  simulated  bot  ("  Scheinbusse  ").  In  the  case 
of  two  classes  of  "  rechtlose  "  persons  this  bot  was  literally  a 
mere  semblance  ("  Schein  "),  namely  in  the  case  of  hired  cham- 
pions and  their  children,  who  received  as  bot  the  glint  of  a 
shield  in  the  sunlight;  whereas  minstrels,  and  all  who  had  sold 
themselves,  were  accorded  as  bot  the  shadow  of  a  man.  Other 
classes  of  rightless  persons  received  an  actual  bot,  but  in  mocker}^ : 
e.g.  to  persons  who  had  forfeited  their  rights  through  thievery 
and  robbery  two  besoms  and  a  pair  of  shears,  the  implements 
with  which  penalties  of  "  skin  and  hair  "  were  inflicted.  Finally, 
illegitimate  children  were  given  a  cart-load  of  hay  such  as  two 
yearling  steers  could  draw ;  and  unfree  wage-earners  received 
two  woolen  gloves  and  a  dung-fork,  —  in  short,  bots  that  were 
of  slight  value  if  not  exactly  derisive.  The  reason  of  these 
remarkable  bot-tariffs  set  forth  in  the  Law-Books  ^  we  must 
doubtless  seek  with  Gierke  ^  in  the  inclination  of  the  old  law, 
to  give  at  least  something,  even  though  it  be  an  empty  form, 
instead  of  simj^ly  awarding  nothing. 

(Ill)  The  Modern  Development.  —  Although  the  law  of  honor 
is  dependent  in  an  especially  high  degree  upon  peculiarities  of 
national  feeling  and  the  degree  of  general  culture,  Germany 
nevertheless  adopted  with  the  Roman  law  its  provisions  respect- 
ing this  matter,  without  of  course  totally  abandoning  traditional 
conceptions  and  institutes.  A  vague  condition  of  the  law  in 
many  respects  was  here  again  a  necessary  consequence. 

(1)  The  Roman  laiv  in  its  latest  form  knew  the  two  institutes 
of    "  infamia "    and    "  turpitudo."      The    former,    whose    legal 

1  For  example,  Ssp.  Ill,  45,  §§  8-10. 

*  "Humor  im  deutsehon  Recht",  45.  See  also  Pcterka,  "Das  offene 
zum  Scheine  Handeln  im  deutschen  Reehte  des  Mittelalters",  in  Beyerle's 
"Beitrage",  No.  VII,  1  (1911),  42  ct  scq. 

105 


§  14]  THE    LAW    OF    PERSONS  [BooK    I 

essentials  persisted  uucluiugeil  from  the  beginning,  intervened 
automatically,  either  as  "  infamia  immediata  "  under  certain 
circumstances  of  dishonorable  fact  —  e.g.  in  dishonorable  callings, 
double  marriage,  etc. — or  as  "infamia  mediata  "  in  conse- 
quence of  a  ju(lgment  passed  upon  an  act  punishable  by  loss 
of  honor.  All  criminal  judgments,  and  among  civil  judgments 
those  decreed  in  "  actiones  famosae  ",  involved  this  latter  type  of 
"  infamia."  On  the  other  hand,  "  turpitudo  "  (also  called  "  in- 
famia facti  ")  was  the  consequence  of  a  judicial  decree,  pronounced 
at  the  discretion  of  a  court  in  accord  with  the  judgment  already 
passed  on  the  case  by  public  opinion.  It  was  natural,  then,  once 
Roman  conceptions  had  come  to  be  ai)plied,  to  conceive  of  the 
"  Rechtlosigkeit  "  of  the  German  law  consequent  upon  a  judicial 
judgment  as  "  infamia  juris  mediata  " ;  and  to  call  the  "  Recht- 
losigkeit "  or  "  Ehrlosigkeit  "  that  resulted  from  a  dishonorable 
action  "  infamia  juris  immediata."  These  interpretations,  speak- 
ing generally,  involved  for  the  most  part  merely  formal  modifi- 
cations, the  old  conceptions  remaining  substantially  in  force. 
True,  the  consequences  of  the  Roman  institutes  were  quite  other 
than  those  of  the  loss  of  civil  honor  in  Germanic  law :  evidently 
there  could  be  no  talk  in  Germany  of  the  loss  of  the  "  ius  sufTragii 
et  honorum  ",  since  the  common  man  had  long  since  ceased  to 
possess  such  a  right.  In  essence,  however,  it  continued  to  be 
true  that  in  these  cases  of  "  Rechtlosigkeit  "  the  question  involved 
was  the  loss  of  all  those  rights  that  marked  an  individual  as  an 
equal  member  within  the  circle  of  his  fellows ;  so  that  the  con- 
ception of  honor  naturally  came  to  appear  as  a  special  honor 
determinant  of  status,  although  this  did  not  in  itself  signify 
any  change  in  essence. 

(2)  As  a  result  of  applying  the  conceptions  of  "  infamia  iuris 
immediata"  and  of  "turpitudo  "  ("infamia  facti"),  "Ehrlosig- 
keit "  due  to  birth  out  of  wedlock  and  to  dishonorable  trade,  — 
so-called  "  Uncchtheit  ",  —  was  developed  into  the  institute  of 
infamy  ("  Anriichigkeit  ").  In  the  period  of  the  decay  of  German 
culture,  the  spirit  of  men's  minds,  —  inclined  to  pettiness,  plagued 
by  trade  jealousy,  and  bound  in  conceit  and  vanity, — found 
in  this  exceedingly  unedifying  expression. 

Bastards,  from  whom  the  common  law  never  removed  the 
ill  fame  due  to  the  stigma  of  their  birth,  secured  toward  the  end 
of  the  1700  s,  at  least  in  Territorial  legislation,  a  gradual  improve- 
ment of  their  situation  {infra,  §  99).  They  acquired  capacity 
to  engage  in  industry  and  to  become  members  of  the  crafts,  and 

106 


Chap.  II]  NATURAL   PERSONS  l§  14 

the  right  to  churchly  burial ;  and  the  Prussian  "  Landrecht  " 
(11.  2,  §  602)  declared  in  terms  quite  general  that  illegitimate 
children  should  have  equal  rights  in  the  affairs  of  civil  life  with 
those  born  in  wedlock  or  legitimized.  True,  it  provided  in 
another  place  (II.  8,  §  279)  that  admittance  to  apprenticeship 
should  be  denied  on  account  of  illegitimate  birth  to  no  one  who 
had  secured  legitimation ;  a  concession  to  the  narrow-minded- 
ness of  the  crafts  hardly  to  be  reconciled  with  the  other 
principle.  With  this  regulation,  however,  it  directly  aligned 
itself  with  the  positive  law  of  the  Empire  at  that  time,  which  had 
been  fixed  by  a  decree  of  the  Imperial  Diet  in  1731.  And  yet 
that  decree  signified  an  advance  when  compared  with  older  condi- 
tions. For  legitimation  had  doubtless  long  sufiiced  to  wipe 
out  the  stain  of  illegitimacy,  and  to  give  those  legitimized 
capacity  for  all  public  offices  and  honors ;  though  it  had  not  been 
able  to  secure  them  under  all  circumstances  normal  rights  of  inheri- 
tance from  parents  and  kindred.  The  craft-law,  however,  had 
treated  legitimatized  children  as  no  better  than  bastards,  accept- 
ing as  sufficient  only  a  legitimation  brought  about  by  subsequent 
marriage,  or  recognizing  only  children  born  after  wedlock.  The 
decree  of  the  Diet  just  referred  to  first  compelled  the  crafts  to 
abandon  their  exclusive  attitude.  Only  in  the  1800  s  was  the 
requirement  of  legitimation  generally  abandoned.  It  is  true, 
that  in  consequence  of  the  older  view  of  the  stain  of  illegitimate 
birth,  the  rule  that  illegimate  children  of  a  noble  mother  do  not 
inherit  her  nobility  has  maintained  itself  until  recent  times  in  the 
law  of  some  States  {e.g.  in  Prussia  and  Austria),  and  many  con- 
tend, in  the  common  law  as  well ;  and  the  law  of  the  Catholic 
Church  still  maintains  the  idea  that  birth  outside  wedlock  con- 
stitutes an  "  irregularity  ",  denying  therefore  to  illegitimates 
ordination  in  her  service. 

The  circle  of  so-called  dishonorable  trades  was  continually 
widened  toward  the  close  of  the  Middle  Ages,  and  imperial 
legislation  long  attempted  in  vain  to  make  headway  against 
the  movement.  Even  children  and  grandchildren  of  persons 
of  such  base  condition  were  excluded  from  the  crafts :  the 
drapers'  craft  of  Paderborn  hesitated,  for  example,  to  receive 
a  burgher  because  his  father  had  been  in  youth  a  minstrel  and  his 
wife  was  a  miller's  daughter.  The  Diet  decree  of  1731  first 
determined  that  in  future  no  profession  or  handicraft  should 
constitute  ground  for  exclusion  from  the  crafts :  only  in  case 
of  hangmen  did    it   permit,  through   two   generations,  the   rule 

107 


§  14]  THE    LAW    OF    PERSONS  [BoOK   I 

theretofore  practiced.  This  exception  too  was  narrowed  by  a 
decree  of  the  Diet  of  1772.  The  Prussian  "  Landrecht  "  and  the 
legishition  of  most  of  the  other  States  assumed  a  Uke  position. 
Not  imtil  the  1800s  was  the  executioner's  calling  freed  of  its 
stigma, — in  Prussia  by  administrative  ordinances  of  1819  and 
1827 :  a  necessary  consequence  of  the  introduction  of  universal 
mihtary  service.  His  base-condition  maintained  itself  longest  in 
Altenburg,  Hamburg,  and  Sclileswig-IIolstein. 

(3)  The  law  has  thus  attained  at  the  present  day  a  position  where 
it  no  longer  recognizes,  save  within  narrow  bounds,  any  influence 
of  honor  in  matters  of  private  law.  On  the  other  hand  it  has  de- 
veloped the  denial  of  rights  of  civil  honor  into  an  important  in- 
stitute, as  a  criminal  penalty,  entailing  also  consequences  in  private 
law.  In  the  abjudication  of  all  or  certain  rights  of  civil  honor, 
decreed  as  a  criminal  penalty,  one  can  trace  the  old  "  Rechtlo- 
sigkeit  "  due  to  crime,  and  the  Roman  "infamia  iuris  mediata." 
It  also  influences  the  private  law  to  the  extent  that  it  may 
effect  incapacity  to  assume  a  guardianship,  curatorship,  attorney- 
ship, or  membership  in  a  family  council.  Further,  persons  who 
are  deprived  of  rights  of  civil  honor  may  be  excluded  from 
associations,  trade  unions,  and  general  meetings  of  associations 
("  Generalversammlungen  ") ;  they  may  not  be  editors  of 
periodicals,  etc. 

The  old  institute  of  "  infamy  "  lives  on  in  the  law  of  to-day  in 
so  far  that  the  lack  of  civil  honor  may  still  have  legal  conse- 
quences, even  without  a  judicial  abjuflication  of  the  rights  of  civil 
honor.  When  a  person  is  guilty  of  a  dishonorable  life  his  marriage 
may  be  dissolved  at  the  instance  of  his  spouse  ;  his  parental  power 
may  be  limited ;  he  may  be  disinherited ;  his  dishonorable  life 
may  become  an  issue,  to  his  prejudice,  before  a  court  or  an  admin- 
istrative board,  and  still  further  disabilities  may  be  decreed  against 
him  as  respects  his  juristic  acts.  Espcciall}'  in  the  modern  labor 
law  the  principle  has  been  recognized  that  contracts  may  be  dis- 
solved for  lack  of  honor  ("  Ehrlosigkcit  ")  in  the  other  party ; 
nobody  shall  be  held  to  labor  longer  with  another  who  has 
revealed  himself  as  a  "bad  "  member  of  society.^  Certain  further 
consequences  drawn  by  the  earlier  law  —  e.g.  incapacity  during 
the  period  of  one's  imprisonment  for  the  administration  of 
property,  incapacity  to  acquire  a  "  fidcikommissum  ",  to  hold 
land  by  feudal  tenure,  postponements  in  inheritance  —  are  no 
longer  of  practical  importance  in  the  law. 

*  Hedemann,  "Fortschritto  dos  Zivilrechts",  I,  75. 
108 


Chap.  Ill]      JURISTIC    PERSONS   AND    OTHER   ASSOCIATIONS 


[§15 


Chapter  III 

JURISTIC   PERSONS   AND   GROUPS   INCAPABLE  OF  HOLDING 

RIGHTS 


15.   Associational  Organization  in 
Germanic  Law,  generally. 
I.    Significance  of  the  Asso- 
ciation. 
II.    Possible     Classifications 
and  Viewpoints. 


Topic  1 

Specific    Types   op    Communities 
IN  Germanic  Law 

§  16.   The  Sib. 

I.    Origin. 

II.  Associational   Character 
of  the  Sib. 

III.  Disintegration  of  the  Sib. 
§  17.    The  Mark-associations. 

I.  Origin. 

II.  Legal  Nature. 

III.  Organization. 

IV.  Free,    Mixed,   and   Ma- 

norial    Mark-associa- 
tions. 
V.    Transformations   of   the 
old  Mark-association. 

(1)  The    commune    and 

the  mark-associa- 
tion as  distinct 
corporate  associa- 
tions. 

(2)  Transformation      of 

the  mark-associar 
tion  into  an  eco- 
nomic association. 
VI.    Dissolution  of  the  Mark- 
associations. 
§  18.    Neighborhood       Associations 
of    More    Restricted    Pur- 
poses. 

I.   Associations  for  Special 
Agricultural  Purposes. 

(1)  The  farm  communi- 

ties of  Trier. 

(2)  The  "Hau  berg  "-as- 

sociations of  West- 
phalia. 

(3)  The         Alp-associa- 

tions of  Switzer- 
land. 

(4)  Vineyard       associa- 

tions. 


§19. 


20. 


§21. 


II.   Associations   for   Irriga- 
tion and  Mining. 
III.   Transportation  Unions. 
The  Craft  Gilds. 
I.    Origin. 

(1)  Gilds  merchant. 

(2)  Craft  companies. 

(3)  Fraternities. 

II.   Essential  Nature  of  the 
Crafts. 

(1)  The    principle        of 

"gild  coercion." 

(2)  Organization. 

(A)  Membership. 

(B)  Organs. 

(3)  Corporate  character 

of  the  craft  gild. 
III.    Decline  of  the  Crafts. 
Other    Associations    without 

the  Bond  of  Vicinage. 

I.    Industrial  Associations. 

(1)  The       minters'    as- 

sociations. 

(2)  Capitalistic  associa- 

tions. 
II.    Associations     for     Con- 
vivial, Religious,  and 
Scientific  Purposes. 
III.    Political  Associations. 
Communities   of    "Collective 
Hand.'! 
I.    The  Medieval  Law. 

(1)  Nature  of  these  com- 

munities. 

(2)  Origin. 

(3)  Specific  types. 

(A)  The        peasant 

communities 
of  "collective 
hand." 

(B)  Co-heir       com- 

munities     of 
kniglits. 

(C)  Herital     frater- 

nities. 

(D)  Unions     under 

public  and 
international 
law. 

(E)  The         marital 

community  of 

"collective 

hand." 


109 


§  15] 


THE    LAW    OF    PERSONS 


[Book  I 


II.    The     Modern     Develop- 
ment. 

Topic  2 

The  Outcome  of  German   Legal 
Development 

§  22.  General  Principles  of  the 
German  Law  of  Associa- 
tions. 

I,  Associations  proper  and 
Corporate  Associa- 
tions. 

(1)  Associations. 

(2)  Corporate     associa- 

tions. 
II.    Communities    of    "  Col- 
lee  tiv^e  Hand." 


§  23.    Reception  of  the  Alien  Law 
and     ll(Miascence     of     the 
Germanic  Law. 
I.    The  Corporation  Theory 
of  the  Alien  Law. 
(1)  "Universitas"     and 
"societas." 

(A)  "Universitas." 

(B)  "Societas." 

(2)  Nature  and  species 

of  juristic  persons. 

II.    The    Reception    of    the 

^Uien  Doctrines. 

III.    The   Renascence  of  the 

Native  Law. 

(1)  In  legal  theory. 

(2)  In  positive  law. 


§  L5.  Associational  Organization  in  Germanic  Law,  generally.^ 
(I)  Significance  of  the  Association.  —  If  \vc  designate  by  the 
expression  "  association  "  ("  Genossenschaft  "),  with  entire 
generahty,  unions  of  several  human  beings  into  legal  com- 
munities of  narrower  or  wider  scope,  closer  or  laxer  struc- 
ture, such  associations  have  at  all  times  been  numerous  and 
of  great  importance  in  Germanic  law.  A  strong  associational 
quality  is  stamped  upon  Germanic  law  from  the  earliest  times. 
It  gives  this  a  character  distinct  from  that  of  the  ancient  Roman 
law.  At  the  same  time  the  fact  is  not  to  be  overlooked  that  little 
is  known  respecting  the  actual  development  of  the  society  and 
partnership  law  of  antiquity :  the  scanty  rules  of  the  "  Cor- 
pus Juris  Civilis  ",  a  meager  final  selection  from  a  technical 
literature  dealing  with  a  practice  that  is  lost  to  us,  cannot  be 
compared  with  the  superabundant  wealth  of  information  that 
we  possess  respecting  the  actual  legal  practice,  inialtered  by  scien- 
tific editing,  of  the  Middle  Ages.  Nor  should  it  be  forgotten 
that   this    associational    character   is    not,    strictly   speaking,   a 

'Of  fundamental  importance  are  the  ^eat  works  of  Cierkr:  "Das 
deutsche  Genossenschaftsrecht",  Vol.  1  :  "  Rechtsgescliichte  dcr  dentschen 
Genossenschaft"  (1868),  Vol.  2:  "Geschichte  dcs  deutsclien  Korpcr- 
schaftsbegriffs"  (1873), 'Vol.  3:  "Die  Staats- und  Korporationslehre  dcs 
Allcrthuins  und  des  r^Iittclalters  und  ilirc  Aufnahnic  in  DcutschhuKl", 
(1881)  — one  section  of  which  last  lias  h(H>n  translated  into  English  with 
a  valuable  introduction  bv  F.  W.  Maiilnnd  under  the  title  "Political 
Theories  of  the  Middle  Ages,  by  Dr.  O.  Gierke"  (1900^ :  "Die  GenoSsen- 
schaftstheorie  und  die  deutsche  Rechtsprechung"  (1S87) ;  "Das  Wesen 
der  mensohliclien  Verbande"  (rectoral  address,  Berlin,  1902).  See  also: 
Snfun,  "Die  deutsche  Genossenschaft",  in  the  "Leipziger  PY'stgabe  fiir 
Windscheid"  (1888);  Fr.  Knuffmnnn,  "Altdoutsche  (ienossen.schaften 
(gemein  und  geh(>im ;  Baiiern,  Gesellen,  und  audere  Genossen)",  in 
Worter  und  Sachen  II  (1910),  9-42. 

110 


Chap.  Ill]      JURISTIC    PERSONS    AND    OTHER   ASSOCIATIONS  [§  15 

thing  exclusively  German.  It  is  rather  peculiar  to  all  Ger- 
manic peoples ;  likely  enough  it  had  its  richest  development  in 
England, 

The  political  and  economic  conditions  of  the  Middle  Ages 
everywhere  favored  its  development.  While  the  omnipotence 
of  the  State  and  the  slave  economy  of  antiquity  were  hindrances 
to  a  richer  associational  life,  the  weakness  of  the  medieval 
State,  the  sharp  division  of  population  by  birth  and  profession 
into  strata  and  groups  of  v^aried  rights,  and  the  impossibility  of 
realizing  greater  undertakings  —  such  as  the  clearing  of  the 
primeval  forests,  or  the  transportation  of  goods  —  otherwise  than 
by  the  united  physical  power  of  many  individuals,  offered  strong 
inducement  and  even  compulsion  to  the  formation  of  associational 
groups.  State  and  law  were  too  weak  to  protect  the  individual 
as  such ;  only  as  a  "  fellow  "  ("  Genosse  "),  as  one  belonging  to  a 
union  of  his  equals,  could  he  find  the  security  requisite  for  his  exist- 
ence. Thus,  the  practical  necessities  of  life  in  the  Middle  Ages 
led  to  an  enormous  wealth  of  associational  groups.  But  when 
the  modern  State  later  established  security  of  law  and  com- 
merce, and  drew  in  increasing  measure  within  the  domain  of 
its  power  such  important  tasks  of  civilization  as  poor-relief,  the 
regulation  of  industry  and  education,  and  the  like,  the  importance 
of  those  narrower  communities  of  sib  and  family,  merchant  gilds 
and  craft  gilds,  communities  of  "collective  hand  ",  rural  asso- 
ciations, etc.  disappeared ;  more  especially  because  to  an  age  of 
individualistic  feeling  they  appeared  to  be,  for  the  most  part, 
only  belated  fetters  upon  free  individual  action.  It  was 
economic  tasks,  mightily  growing  in  the  modern  period,  that  gave 
new  life  to  the  associational  type  of  organization  and  brought 
it  to  an  imposing  development,  —  though  truly  in  large  degree 
in  new  forms,  and  for  new  ends;  creating,  especially  in 
share  companies  and  other  forms  of  capitalistic  associations, 
instruments  of  the  greatest  importance.  Since  the  second  half 
of  the  1800  s  personal  unions  of  the  most  varied  kinds  have 
spread  over  the  whole  world  in  numbers  which,  in  the  opinion 
of  the  most  gifted  modern  historian  of  English  law,  have  far 
exceeded  the  relative  increase  of  natural  persons  in  the  same 
period  of  time.^ 

(II)     Possible  Classifications  and  Viewpoints.  —  One  who  should 

review  this  whole  rich  development,   and   seek  to  classify  the 

associational    groups    created    in    its    progress,    might    proceed 

1  Maitla7id,  translation  just  cited,  XII. 

Ill 


§  15]  THE    LAW    OF   PERSONS  [BoOK   I 

from  different  points  of  view.  One  mio:lit  proceed  chronologically ; 
in  which  event  it  would  perhaps  be  found  that  in  the  earliest  time 
blood  connection,  next  the  rural  economic  system,  and  only  later 
still  city  life,  were  successively  the  most  active  factors  in  the 
growth  of  associations.  Again,  one  might  contrast  unions  adapted 
to  a  large  membership  with  those  of  limited  extent.  And  though 
fast  boundaries  are  hardly  to  be  recognized,  originally,  between 
unions  of  public  and  of  private  law,  nevertheless  such  became 
settled  in  time,  and  the  associations  of  public  law,  —  foremost 
among  them  the  State  itself,  but  also  the  commune,  ecclesiastical 
unions,  and  the  like, — come  to  be  distinct  from  those  of  the  private 
law.  According  to  their  ends,  a  division  would  result  into  such 
groups  as  were  designed  to  further  the  whole  legal  and  economic 
existence  of  the  individual  members,  and  which  therefore  in\olved 
the  entire  personality  of  the  individual,  and  others  that  pursued 
more  limited  purposes.  Again,  their  tasks  are  either  exclusively 
of  an  economic  character,  whether  of  a  barter  or  money  economy, 
or  have  reference  to  more  general  cultural  ends, —  benevolent, 
social,  religious ;  and  so  on.  Some  of  the  most  important 
unions  affect  the  individual  independently  of  his  cooperation  ;  so, 
in  particular,  those  of  the  family  law,  but  also  the  commune  and 
the  State.  Others  rest  upon  voluntary  accession,  though  even 
this  may,  under  certain  circumstances,  assume  a  compulsory 
character.  Many  took  form  in  an  unconscious  process  of  develop- 
ment of  customary  law;  others  were  called  into  existence  by 
consciously  creative  acts.  In  some  the  principle  prevails  of 
equal  rights  for  all  members ;  others  reveal  a  hierarchal  organi- 
zation. Some  are  directed  by  the  wills  of  the  members,  which 
are  assembled  by  the  law  in  the  most  varied  ways  into  a  collec- 
tive will ;  others  are  controlled  by  a  will  outside  and  above  them- 
selves. 

Now,  for  purposes  of  legal  appreciation,  it  is  a  circumstance  of 
primary  significance  that  the  union,  as  such,  may  be  more  or 
less  distinctly  independent  of  its  individual  members.  And 
accordingly  the  legal  relation  of  the  members  to  the  totality  of 
associates,  the  legal  relation  of  the  members  with  third  persons, 
and  the  legal  relation  of  the  members  among  themselves,  may 
assume  very  different  forms.  The  last  stage  in  the  growth  of 
the  union  toward  independence  is  reached  when  there  is  attributed 
to  it,  as  such,  the  character  of  an  independent  holder  of  rights, 
or  juristic  personality.  It  then  appears  as  an  independent  "  juris- 
tic "   or   "  group  "    ("  Verbands- ")   person   beside  the  physical 

112 


Chap.  Ill]    JURISTIC   PERSONS   AND   OTHER   ASSOCIATIONS  [§  15 

persons  of  its  members,  and  increases  by  one  their  number  as 
holders  of  legal  rights. 

Germanic  and  German  law  both  attained  to  the  development  of 
these  associational  forms  with  independent  legal  personality, 
but  this  result  was  only  gradually  realized.  It  presupposes 
advanced  cultural  conditions,  and  a  nicety  of  juristic  technic 
that  is  not  present  in  the  youth-time  of  a  race.  The  understand- 
ing of  medieval  legal  development  has,  indeed,  been  made  partic- 
ularly difficult  precisely  at  this  point,  because,  with  the  reception 
of  the  Roman  law,  the  fundamental  concepts  of  its  law  of 
society  and  partnership  acquired  an  unqualified  ascendancy. 
Not  only  was  the  development  of  Germanic  legal  institu- 
tions interrupted,  but  a  just  scientific  appreciation  of  them  was 
made  impossible.  Modern  research  into  Germanic  origins  has 
effected  a  change  in  this  respect.  It  has  discovered  the  ideas 
dominant  in  the  historical  evolution  and  in  the  present-day 
authority  of  the  German  law  of  associations ;  and  above  all,  it 
has  taught  us  to  comprehend  the  characteristic  differences  that 
distinguish  them  from  the  Roman  conceptions,  which  men  long 
regarded  as  the  only  ones  conceivable.  In  this  connection  it 
has  appeared  that,  as  contrasted  with  the  rules  of  the  Roman 
law,  which  were  logically  a  perfectly  consistent  whole  but  for 
that  very  reason  indigent  in  content,  the  medieval  German  law 
produced  a  great  variety  of  legal  communities,  distinguished 
only  by  slight  differences  from  one  another;  and  maintained 
them,  despite  all  romanistic  attacks,  down  to  the  present  daj^ 

And  so  a  general  survey  should  here  be  given  of  the  most  im- 
portant forms  in  which  the  Germanic  associational  t^'pe  of  organi- 
zation found  legal  embodiment,  before  discussing  (in  §§  22,  27 
infra)  the  fundamental  view  peculiar  to  Germanic  law  and  under- 
lying these  different  embodiments.  In  so  doing  the  distinction 
already  made  between  unions  possessing  independent  legal  person- 
ality and  those  lacking  in  such  independence,  is  to  be  postulated 
as  legally  the  most  important,  —  while  remembering  that  only 
in  the  course  of  time  did  this  distinction  lead  to  their  complete 
separation.  In  the  case  of  some  personal  unions,  nuclei  for  the 
development  therefrom  of  independent  juristic  personalities  were 
doubtless  present  from  the  beginning.  But  the  legal  institute  of 
juristic  personality  attained  perfection,  as  already  remarked, 
only  by  degrees,  and  ever^^vhere  only  in  the  second  half  of  the 
Middle  Ages.  Accordingly,  juristic  persons  also  became  differen- 
tiated only  in  course  of  time,  as  a  legally  peculiar  group  among 

113 


§  15]  THE    LAW    OF   PERSONS  [BooK   I 

the  niimorous  associations  ("  Genosseiischaftcn  ")  of  the  German 
hiw,  and  consequently  it  is  impossible  in  this  place,  —  where  the 
problem  is  to  gi\e  a  general  view  of  the  historical  development, 
anil  of  the  fundamental  ideas  reflected  in  it,  —  to  adopt  the  view- 
point appropriate  to  a  dogmatic  i)resentation  of  the  positive  law 
of  to-day,  or  to  direct  attention  exclusively  to  those  unions  which 
were,  or  have  become,  juristic  persons.  On  the  contrary,  we 
must  follow  the  method  of  treatment  chosen  by  Gierke  ^  and 
Heusler,^  and  consider  here  all  types  of  the  community  ("  Gemein- 
schafts-  ")  law,  including  those  which  in  the  scheme  of  Roman 
and  modern  law  and  in  the  new  Civil  Code,  find  their  place  in 
the  law  of  obligations. 


Topic  I — Specific  Types  of  Communities  in  Germanic  Law. 

§  16.  The  Sib  ("  Sippe  ").  (I)  Origin.  —  The  oldest  type  of 
association,  existing  already  iii  the  primitive  Germanic  period, 
is  the  union  of  the  blood-group  ("  Geschlechtsverband  "),  the 
sib.  The  sib  is  "  the  germ  of  all  associational  life."  ^  It  developed 
at  an  early  day  out  of  the  household  community,  the  patriarchally 
administered  "  greater "  family,  in  which  the  primal-cell  of 
all  social  evolution  among  Aryan  races  is  discernible,  in  this 
way :  that  the  younger  member  of  household  communities  thus 
grown  to  independence,  seceded,  by  stratification  as  it  were,  from 
the  common  household  and  set  up  their  own  economic  establish- 
ments. Inasmuch,  however,  as  these  derivative  separate  families, 
each  of  which  was  under  the  rule  of  its  founder,  maintained  intact 
the  bond  with  the  ancestral  house,  the  sib  remained  beside  the 
separate  houses  as  a  group  embracing  all. 

(II)  Associational  Character  of  the  Sib.  — The  Germanic  sib  was 
constituted  of  a  fixed  circle  of  persons  related  by  blood.  Since 
the  primitive  Germans  lived  in  father-sibs  ("  Vatersippen  "),  i.e. 
in  sibs  that  based  their  kinship  solely  upon  descent  from  a  common 
tril)al  male  ancestor,  the  Germanic  sib  was  an  agnatic  union 
(infra,  §  90).  Its  solidarity  depended  on  the  fact  that  the  women 
belonging  to  a  foreign  sib  abandoned  this  by  their  marriage,  and 
entered  the  sib  of  their  husband,  while  no  bond  of  relationship 
resulted  for  him  and  their  children  with  the  sib  of  the  wife  and 

'  "  Privatroclit",  T.  4")f)  rt  srq.,  GOO  el  scq. 
2  "  Institutioncn",  I,  223  ct.  srq.,  2.52  ct  scq. 

^  Hchrcucr,  "Untersufhunsron  zur  Vorfassungsgeschichte  der  hoh- 
mischen  Sagenzeit"  (1902),  59. 

114 


Chap.  Ill]    JURISTIC    PERSONS   AND    OTHER   ASSOCIATIONS  [§  16 

mother.  In  contrast  to  -the  house-community,  which  was  or- 
ganized on  a  theory  of  patriarchal  power,  the  sib  of  the  primitive 
Germans,  unlike  e.g.  the  Roman  "  gentes  ",  was  presumably  from 
the  beginning  a  union  of  equal  fellows ;  all  adult  male  members, 
but  particularly  the  heads  of  the  separate  households,  being  thus 
regarded.     A  patriarchal  head  was  foreign  to  the  Germanic  sib. 

The  sib  stood  at  the  center  of  all  social  and  legal  relations, 
played  a  great  role  in  the  military  and  judicial  organization,  as- 
sured its  members  internal  peace,  and  protected  them  against 
attacks  from  without.  It  was  also  an  agrarian  union,  and  as 
such  the  prototype  of  the  rural  associations  of  the  Middle  Ages. 
Already  in  it  we  note  a  special  form  of  collective  real  rights  in 
land,  similar  to  those  developed  in  the  mark-associations  {infra, 
§  17)  and  reflecting  its  legal  solidarity  under  the  law  of  per- 
sons. Thus,  when  Caesar  reports  (B.  G.,  VI,  22)  that  the  land 
had  been  distributed  for  cultivation  "  gentibus  cognationibusque 
hominum,  qui  tum  una  coierunt  ",  the  "  gentes  "  stand  for  the 
agnatic  sibs,  to  which  the  Gau  assigned  for  common  cultivation 
the  land  it  occupied.  Clear  indications  from  a  later  time  of  a 
collective  right  of  the  sib  in  the  mark-arable  have  also  been  pre- 
served, —  for  example,  the  dispute  of  the  "  genealogiae  "  over 
the  limits  of  their  districts  which  is  treated  of  in  the  Alamannic 
folk-law  (81).  And  like  the  land,  movables  also  seem  to  have 
been  the  object  of  collective  rights,  and  indeed  in  early  times  of  a 
collective  ownership,  in  the  sib. 

(Ill)  Disintegration  of  the  Sib.  —  The  sib,  as  a  solidary  asso- 
ciational  group,  was  bound  to  disintegrate  when  cognatic  relatives, 
those  connected  through  women,  received  legal  recognition  beside 
the  agnatic  (details  infra,  §  90).  Many  duties  theretofore  in- 
cumbent upon  the  agnatic  sib  were  then  taken  over  by  the  kin- 
ship ("  Verwandtschaft  ").  This  last  took  a  different  form  in 
every  generation,  —  in  other  words,  it  did  not  constitute  a 
solidary  and  exclusive  body,  —  inasmuch  as  only  brothers  and 
sisters  of  equal  birth  have  the  same  paternal  and  maternal  kin- 
dred. Economic  tasks,  however,  fell  thenceforth  upon  the  vicin- 
age-groups based  on  bonds  of  locality,  in  place  of  the  kinship  unions 
of  the  sibs.  A  bond  of  neighborhood  here  replaced  the  bond 
of  blood-relationship ;  the  blood-mark  was  transformed  into  a 
vicinage-mark.^ 

With  this  change  there  was  associated  a  strong  re-emergence 
of  the  house-community.     The  position  of  the  individual  house- 
^  Hubcr,  "Sohw.  Privatrecht",  IV,  235. 
115 


§  16]  THE    LAW    OF    PERSONS  [BoOK   I 

holds  and  of  their  heads  became  the  more  independent,  the  more 
the  sphere  contracted  witliin  which  the  sib  was  active.  Within 
the  unorganized  and  non-exckisive  body  of  the  kinship  there 
developed,  as  the  narrowest  community  determinant  of  legal  and 
economic  life,  the  household.  Unlike  the  sib,  this  continued  to 
retain  in  its  "  pater  familias  "  ("  Hausherr  ",  house-master)  a 
monarchical  head ;  yet  it  might  under  certain  circumstances 
perfectly  well  assume  an  associational  character,  —  namely,  when- 
ever the  family-members  who  had  been  united  under  one  authority 
continued  their  common  life  after  the  death  of  the  "  pater 
familias." 

Thus,  the  oldest  associational  group  had  already  become  subor- 
dinated to  new  growths  at  an  early  day.  The  further  develop- 
ment of  community  organization  from  the  principles  already 
dominant  although  not  yet  wholly  distinct  in  the  sib,  took  place 
first  in  the  vicinage  ("  Orts-  "  )  associations  and  in  the  communi- 
ties of  "  collective  hand  "  which  were  derivative  from  the  house- 
community.     Later  progress  was  due  primarily  to  urban  life. 

§  17.    The  Mark-associations.'      (I)    Origin. — When  the  land 

1  Of  the  abundant  literature,  see:  Heuslcr,  "Die  Rechtsverhaltniss; 
am  Genieindeland  in  Unterwalden",  in  Z.  Sehw.  R.,  X  (1862),  44-144; 
V.  Miaskowski,  "Die  schweizerisehe  AUmend  in  ihrcr  geschichtlichen 
Entwicklung  vom  13.  Jahrhundert  bis  zur  Gej^enwart"  (1S79) ;  v.  Inama- 
Sternegg,  "Deutsche  Wirthsehaftsgesohichte",  I  (1879,  2d  ed.  1909):  96. 
ct  seq.,  370  et  scq.,  II  (1891)  :  78  el  srq.,  207  et  seq.,  274  ct  scq..  Ill,  1  (1899)  : 
64  et  seq.,  237  et  seq.;  Lampreckt,  "Doutsches  Wirtsehaftsleben  ini  Mittel- 
alter",  I  (1886),  259  et  seq.,  384  et  seq.,  695  et  seq.,  902  et  seq.,  992  et  seq.; 
Hnff,  "Geschiehte  einer  ostalemannisehen  (jemeinlandsvorfassung" 
(1903);  Rutlimann,  "Die  Zue:erisclien  Allmendkorporationen",  No.  2 
(1904)  of  Gmiir's  "  Abhandlungen"  ;  Rennefahrt,  "Die  Allmend  im  Berner 
Jura",  No.  74  (1905)  of  Gierke's  "Untersuehungen"  ;  Schotte,  "Studien 
zur  Geschiehte  der  westfiilischen  Mark  und  Alarkp:enossenschaft  mit 
besonderer  Beriicksichtifjunio:  des  Miinsterlandes",  No.  17  (new  ser., 
1908)  of  Meister's  "Miinstorischc  Beitrapfe";  Lappe,  "Die  Banerschaften 
der  Stadt  Geseke,  Ein  Beitrag  zur  Geschiehte  der  deutschen  Stadtver- 
fassung",  No.  97  (1908)  of  Gierke's  "Untersuchungen" ;  Haff,  "Die 
Danischen  Gemeindorechte",  Part  1,  "Alraonde  und  Markgenossen- 
sehaft".  Part  2,  "Die  Feldgemeinschaft"  (1909),  and  cf.  v.  Schirerin  in 
Z.2  R.  G.,  XXXII  (1911),  512-14;  Varrentrnpp,  " Rechtageschichte  und 
Recht  der  gemeinen  Marken  in  ITessen,  Teil  I :  Die  TTessische  Mark- 
genossenschaft  dos  spatcnMi  Mittelalters",  No.  3  (1909)  of  Ifeifmntrn's 
"Arbeiten",  and  cf.  Huff  iu  Z.  R.  G.,  XXX  (1909),  386  394,  liorig  in  Vj. 
Soz.  W.  G.,  IX  (1911),  200-206,  Rietschel  in  Hist.  Z.,  CVII  (new  ser.  11,  — 
1911).  119-23,  and  Cam  in  Hist.  V].  S.,  XIV  (1911),  582-584;  T/iimme, 
"Forestis",  in  Arch.  Urk.  F.,  II  (1909),  101-154:  Half,  "MarkgeiiosscMi- 
schaft  und  Stadtgemeinde  in  Westfalen  ",  in  Vj.  Soz.  W.  G.,  VIII  (1910), 
17-55;  Lappe,  "Nordliinor  Markenrecht"  (1910),  and  "Das  Recht  des 
Hofos  zu  Gahmen,  Zur  Geschiehte  des  Ilofverfassung  des  Mittelalters" 
(1910) :  G.  V.  Belnir,  art.  "Markgenossenschaft"  in  11.  W.  B.  der  Staatsw. 
VI  (3d  ed.,  1910),  58.5-587;  Weimann,  "Die  Mark-  und  Walderben- 
genossenschafton  des  Niederrheins",  No.  106  (1911)  of  Gierke's  "Unter- 
suchungen", and  cf.  Haff  in  Deut.  Litt.  Z.,  1911,  No.  48,  Thimme  in 

116 


Chap.  Ill]    JURISTIC    PERSONS   AND    OTHER   ASSOCIATIONS  [§  17 

that  had  been  originally  assigned  to  the  sibs  by  the  Gau  merely 
for  temporary  cultivation  {supra,  p.  115)  came  in  time  to  be  held 
in  permanent  possession,  and  finally  in  ownership,  by  them, 
they  were  thereby  transformed  into  unions  of  definite  local  limits 
which  were  united  physically  by  the  land  standing  in  their 
ownership,  —  the  mark  ("  Mark  "  :  signifying  originally  boundary, 
or  march,  later  the  domain  enclosed),  —  and  personally  by  the 
bond  of  neighborhood  that  had  replaced  blood-relationship. 
These  unions,  which  were  the  mark-associations,  ordinarily  coin- 
cided with  the  village-communities  wherever,  as  was  most  com- 
monly the  case  among  the  early  Germans,  settlement  took  place 
in  that  form ;  the  village-communities  were,  so  to  speak,  the 
topographic  projection  of  the  sibs.  In  some  cases,  however,  the 
mark-association  was  greater  in  area  than  the  village-community 
because,  for  one  thing,  the  Gau  did  not  always  allot  its  whole 
domain  among  the  blood-groups,  but  might  retain  for  itself  parts 
of  the  same  as  a  Gau-mark.  These  great  collective-marks  —  Gau- 
marks,  and  doubtless  also  hundred-marks  —  disappeared  for  the 
most  part,  it  is  true,  in  the  course  of  the  INIiddle  Ages ;  but  in 
some  regions,  as  e.g.  in  Allgau,  Upper  Bavaria,  and  North  Tyrol, 
they  have  maintained  themselves  down  to  the  present  day. 
Again,  with  the  growth  of  population  within  the  territory  of  a 
village  settlement,  new  derivative  village  communities  arose, 
and  this  always  led  to  a  partition  of  the  arable  lands  among 
all  such  rural  communes,  but  not  always  to  a  corresponding  parti- 
tion of  the  remaining  land.     In  this  case,  therefore,  as  in  the  other, 

Westd.  Z.  G.  K.,  XXX  (1911),  447-449,  and  Rbrig  in  Hist.  Vj.,  XV 
(1912),  407-413;  v.  Schxoerin,  art.  "AUmende"  in  Hoop's  "  Reallexicon  ", 
I  C1911),  63-65;  Lnppe,  "Eine  untergegangene  Bauersehaft",  Z.^  R.  G., 
XXXII  (1911),  229-246,  and  " Bauersehaf ten  und  Huden  der  Stadt  Salz- 
kotten",  No.  VII,  4  (1912)  of  Beyerle's  "Beitrage";  Dopsch,  "Die  Wirt- 
sehaftsentwicklung  der  Karolingerzeit  vornehmlich  in  Deutschland",  I 
(1912),  333-369.  See  also  Kauffmann,  article  cited  above,  p.  30  et  scq.,  35 
et  seq.;  also  Sohm,  "t)ber  das  Hantgemal';,  in  Z.^  R.  G.,  XXX  (1909),  103, 
107  et  seq.  —  Questions  as  to  the  age,  originating  causes,  and  nature  of  the 
mark-associations  are  still  sharply  debated.  The  view  represented  in  the 
te.xt,  which  is  the  older  and  as  yet  the  predominant  one,  and  which  maintains 
the  independent  primitive  origin  of  the  mark-associations,  is  opposed  by 
another  that  denies  them  such  character.  The  former  theory  was  accepted, 
among  others,  by  Varrentrapp  (at  least  before  he  allowed  himself  to  be 
influenced  by  the  assumptions  of  Schotte,  which  in  my  opinion  are  un- 
sound), v.  Schwerin,  Thimme,  Rorig,  and  in  essentials  also  by  Haff. 
Its  most  aggressive  opponent  is  Dopsch ;  he  contends  that  those  marks 
of  which  there  are  reports  in  the  sources  of  the  Carolingian  time  wer(>  not 
the  survivals  of  an  undemonstral)le  agrarian  communism  of  primitive 
Germanic  times,  but  the  result  of  the  continued  appropriation  of  forest 
lands,  originally  lordless,  either  by  manorial  lords  who  were  ever  becoming 
more  powerful  or  by  free  and  independent  landowners. 

117 


§  17]  THE    LAW    OF    PERSONS  [BoOK   I 

the  members  of  various  village  communities  remained  united  in 
one  mark-association  inclusive  of  their  several  individual  dis- 
tricts. 

Although  all  the  land  was  originally  subjected,  by  its  allotment 
among  the  neighborhood-unions  as  mark,  to  their  collective  rights, 
a  reduction  of  the  mark  was  e\entually  caused  by  the  api)inir- 
ance  and  gro\\'th  of  individual  ownership.  All  those  parcels  which 
passed  into  the  private  ownership  of  indi\idual  mark  associates, 
ceased  to  be  part  of  the  mark ;  and  also  in  the  same  way  isolated 
jHeces  of  land  assigned  to  individual  usufruct.  The  former 
included,  at  first,  only  house-plots  with  the  yards  and  gardens 
surrounding  them,  but  later  the  arable  fields  as  well.  Thence- 
forth, the  meadows  and  woods, — the  so-called  "  Allmende  " 
("  Allgemein  ",  commons),  —  constituted  practically  alone  "  the 
mark  "  or  "  the  common  ('  gemeine  ')  mark." 

Where  settlement  did  not  take  place  in  villages,  but  by  in- 
dividual farms,  —  as  was  the  case  in  mountain  valleys,  and 
also  in  many  regions  of  the  lowlands,  as  e.g.  along  the  Hellweg 
in  Westphalia,  — the  Allmende,  in  the  indicated  sense  of  meadow 
and  woodland,  was  the  sole  basis  from  the  beginning  of  the  com- 
munity constituted  of  the  individual  settlers.  This  was  known 
in  such  localities  as  the  "  peasant  "-community  ("  Bauerschaft  "). 

(II)  Legal  nature.  —  The  origin  of  the  mark-associations  made 
them  in  their  very  nature  economic  unions,  notwithstanding 
that  their  boundaries  not  infrequently  coincided,  in  the  earlier 
periods,  with  those  of  the  political  administrative  districts,  the 
Gaus  and  the  hundreds,  and  that  in  consequence  of  this  topo- 
graphic coincidence  there  regularly  resulted  a  complete  fusion 
of  the  two  into  one  communal  entity,  from  one  view{)oint 
political  and  from  another  purely  economic.  The  mark-associa- 
tions had  for  their  exclusive  end  the  advancement  of  the  agri- 
cultural interests  of  the  whole  association  and  of  each  individual 
associate.  These  interests,  however,  were  in  no  way  contra- 
dictory, for  the  purposes  of  the  whole  were  precisely  the  purposes 
of  the  individual  associates.  The  individual  associate  needed 
the  common  land  for  any  ordered  prosecution  of  his  own  agri- 
culture :  he  needed  the  right  to  pasture  over  and  to  cut  wood  upon 
it ;  and  so  on.  And  that  these  usufructuary  rights  should  inure 
to  each  associate  was  for  the  benefit  of  all,  and  therefore  of  the 
group.  It  was  these  usufructuary  rights  that  inured  to  each  associ- 
ate as  an  appurtenance  to  his  individual  ownership, — originally 
in  unrestricted  measure,  and  later  to  an  extent  proportioned  to 

118 


Ch.\P.  Ill]    JURISTIC    PERSONS   AND   OTHER   ASSOCIATIONS  [§  17 

that  of  his  land  (measured  by  the  full-hide),  —  that  embodied  the 
practical  value  of  membership  in  the  association.  Inasmuch,  how- 
ever, as  no  division  of  the  common-mark  took  place  incidentally  to 
the  usufruct  thus  enjoyed  by  each  associate  in  the  entire  undi- 
vided common,  such  rights  were  collective  rights  of  usufruct.  To  be 
sure,  definite  pieces  of  the  common  might  be  assigned  to  individual 
associates  for  individual  usufruct ;  but  in  this  case  they  ceased 
to  be  part  of  the  common-mark.  And  when  (as  was  still  true  in 
the  Prankish  period)  the  right  of  "  Neubruch  ", — -that  is  the 
authority  to  clear  mark-land,  especially  woodland,  and  to  appro- 
priate its  ownership  —  belonged  to  the  associates,  such  land- 
breaks  also  became  the  separate  property  of  the  improver. 

But  who  was  the  owner  of  the  mark?  To  this  much  debated 
question  no  other  answer  can  be  given  than  this  :  that  in  the  sense 
of  the  medieval  law  the  associates  in  their  entirety  were  regarded 
as  the  owners.  This  entirety,  however,  the  association  as  such, 
was  in  medieval  conceptions  by  no  means  opposed  to  the  indi- 
vidual associates  as  a  legally  independent  and  distinct  third  per- 
son. On  the  contrary  it  was,  as  it  were,  "  built  up  out  of  them  as 
a  personality  uniting  all :  the  associates  stood  as  with  one  part  of 
their  personality  in  the  group."  ^  The  mark  belonged  to  the 
totality  of  associates.  And  the  same  was  true  of  "  collective  " 
chattels  ("  Gesamtfahrhabe ")  such  as  implements,  buildings, 
and  breeding  stock, — which  must  always  have  existed,  even 
though  not  always  in  great  amount, — and  of  the  property  accu- 
mulated out  of  taxes  and  penal  fines.  The  associates  as  a  body 
controlled  the  mark,  they  determined  the  economic  plan  for  its 
exploitation.  That  this  collective  right  of  the  association  in  the 
mark  was  a  remnant  of  their  one-time  collective  right  in  the  whole 
domain,  including  the  arable  fields,  was  shown  by  the  fact  that 
it  retained  certain  supreme  powers  over  the  arable  that  had 
passed  into  private  ownership.  Thus,  for  example,  the  in- 
dividual was  bound  by  the  resolves  of  the  commonalty  in  the 
cultivation  of  his  arable  land.  This  was  the  principle  of  com- 
pulsory regulation  of  the  common  fields  {"  Flurzwang  ").  Again, 
the  whole  body  had  the  right  to  reclaim  lands  allowed  to  go  to 
waste ;  and  also  a  right  of  escheat  in  the  hides  left  by  heirless 
members.  Indeed,  under  some  circumstances  even  a  new  allot- 
ment of  the  arable  ("  Reebningsverfahren  ")  might  be  under- 
taken.    With  these  powers  over  the  mark  that  inured  to  and 

1  Slulz,  "Rechtsgutaehten  .  .  .  betr.  das  Reeht  der  Fischerei  im  Rhein 
zwisehen  Rheinfelden  und  Sackingcn"  (1900),  11. 

119 


§  17]  THE    LAW    OF   PERSONS  [BoOK   I 

were  exercised  by  the  associates  as  a  body,  were  united  those  of 
the  individual  associates.  Xor  were  these  in  the  nature  of  rights 
in  "  aUeno  solo."  They  were  simply  derivative  from  the  collec- 
tive privileges  that  pertained  to  them  as  a  body,  and  therefore 
also  to  each  individual ;  not  distinct  and  separate,  but  ideal, 
shares  in  a  collective  right,  which  were  united  by  an  associational 
principle.  In  the  literature  of  modern  Germanic  studies  this 
peculiar  distribution  of  powers  between  the  whole  and  the  in- 
dividual members  is  designated  "  associational  collective-owner- 
ship "  ("  genossenschaftlichcs  Gesamteigentum  ",  i)ifra,  §  33). 
It  was  the  counterpart  in  the  law  of  things  of  that  bond  which 
united  the  associates  themselves  into  a  whole  recognized  by  the 
law  of  persons,  and  which,  while  it  did  not  as  yet  possess,  unlike 
them,  a  legal  independence,  nevertheless  at  least  did  already 
represent  an  entity. 

(Ill)  Organization.  —  That  the  associates  were  united  in 
a  legal  entity  was  manifest  in  the  fact  that  from  the  earliest  times 
a  definite  organization  was  an  essential  of  the  mark-association. 
For  without  some  organization,  however  simple,  unions  consist- 
ing of  numerous  members,  such  as  the  mark-associations  were 
from  the  beginning,  could  not  have  continued  to  exist ;  though 
that  is  of  course  by  no  means  to  be  regarded  as  proof  of  a  legal 
personality  inherent  in  them  from  their  origin.^  Special  officers 
of  the  mark-associations  were  necessary,  however,  only  in  those 
marks  that  belonged  to  a  Gau  or  a  hundred ;  since  the  officers  of 
the  Gaus  and  the  hundreds  exercised  exclusively  political  powers. 
In  the  village  communities  the  organs  of  the  political  commune 
served  at  the  same  time  the  village  mark-association.  The 
supreme  administrative  organ  was  the  totality  of  associates  gath- 
ered in  the  assembly  of  markmen,  which  sat  under  the  presidency 
of  the  chief-markman  (called  "  woodward  ",  "  wald-grave  ", 
"village  magistrate",  etc.).  It  regulated  the  usufruct  of  the 
mark  and  the  services  imposed  on  the  markmen  ;  judged  in  cases 
of  waste  committed  on  the  mark ;  elected  the  mark  officials 
(foresters,  field-guards,  etc.) ;  and  doubtless  chose  a  committee  as 
a  permanent  supervisory  organ.  Originally  all  persons  settled 
within  the  mark  and  possessing  their  own  household  —  "  flame 
and  fire  keepers  ('  Flammer  und  Feurer  ')  behind  the  mark  ", 
—  ranked  as  "full"  or  "  mark  "  associates,  enjoying  equal  rights. 
Such  were  called  "Marker",  "  Erbexen  ",  "  villani  ",  "  vicini  ", 
"  commarcani."  However,  it  was  a  precondition  to  this  that 
'This  is  the  opinion  of  Heusler,  "Institutionen",  I,  262  el  scq. 

120 


Chap.  Ill]    JURISTIC   PERSONS   AND   OTHER  ASSOCIATIONS  [§  17 

they  should  either  have  descended  from  a  markman  or  should 
have  been  adopted  by  vote  of  the  community.  Inasmuch  as 
the  principle  of  majority  rule  was  still  quite  foreign  to  the 
primitive  law,  so  that  resolutions  could  be  taken  only  by 
unanimity  in  the  assembly  of  associates,  each  associate  might 
raise  objections  at  any  time  within  a  year  to  the  settlement  of 
any  stranger  (as  was  laid  down,  for  example,  in  the  Salic  folklaw).^ 
(TV)  Free,  Mixed,  and  Manorial  Mark-associations.-  —  The 
mark-association  that  corresponded  to  the  Germanic  agrarian 
system,  consisting  exclusively  of  free  and  equal  fellows  and  en- 
dowed with  far-reaching  autonomy,  lost  ground  following  the 
Frankish  period  in  consequence  of  the  growth  of  manors.  Fully 
free  ("  altfreie ",  primitive  free)  village  and  mark-communes 
maintained  themselves  only  in  Friesland,  Ditmarsh,  Sv.itzer- 
land,  and  in  some  regions  of  West  Germany.  On  the  other  hand, 
wherever  ecclesiastical  and  secular  land-lords  acquired  the  posses- 
sion of  numerous  hides  formerly  subject  to  equal  rights  of  vicinage, 
and  remained  at  the  same  time  within  the  union  of  the  mark-asso- 
ciations, their  rapidly  expanding  demesne  lands  and  lands  depend- 
ent thereon  procured  them  a  dominant  position  within  such  unions. 
And  since  usufructuary  rights  in  the  mark  were  measured  by  the 
extent  of  one's  landed  possessions,  their  supremacy  was  thereby 
continually  strengthened,  until  finally  it  came  to  be  an  unqualified 
lordship  over  the  mark  and  the  mark-community,  exercised 
through  a  bailiff.  With  this  change  the  mark-community  ceased 
to  be  free.  It  had  still  earlier  become  a  so-called  "  mixed  "  mark- 
community,  in  which  the  land-lord  became  ever  more  prominent 
beside  the  free  associates ;  and  its  elevelopment  from  that  into  an 
"  unfree  "  community  was  due  principally  to  the  frequent  en- 
trustment  of  free  hides  to  landed  magnates  and  the  abase- 
ment thereby  brought  about  (supra,  p.  90)  in  the  legal  status 
of  the  tenants.  From  the  beginning,  moreover,  unfree  mark- 
associations  resulted  wherever  village  communes  grew  up  under 
manorial  law  upon  manorial  estates  that  had  either  detached  them- 
selves from  a  union  of  free  mark-associations  or  had  never  be- 
come part  of  such.  These  mark-associations  of  manorial  law 
("  hofrechtliche  Genossenschaften  "  or  "  grundherrschaftliclic 
Hofmarkgenossensc'haften "),  which  were  especially  numerous, 
and  to  which  by  far  the  most  of  the  dooms   refer,   were   exact 

1  "LexSalica",  45,  1. 

2  Compare  with  this,  especially,  Varrctitrapp,  cited  p.  116  supra,  1,  22 
et  scq. 

121 


§  17]  THE    LAW    OF    PERSONS  [BoOK   I 

replicas  of  the  free  communities  save  for  the  absence  of  personal 
freedom.  A'iewed  from  the  standpoint  of  the  Territorial  law, 
it  is  true  that  their  members  enjoyed  neither  indi\'idual  owner- 
ship in  the  plowland  nor  collective  ownership  in  the  mark  set  ai)art 
for  them  by  the  manorial  lord,  for  the  lord  alone  was  owner  of 
the  whole  domain.  Plis  will  was  therefore  here  decisive  in  a 
measure  even  greater  than  in  the  mixed  associations,  in  matters 
concerning  the  mark ;  the  more  so  because  the  office  of  a  chief- 
markman  was  regularly  conceded  him  by  birth.  The  manorial 
law,  however,  which  was  being  created  within  these  limits  (.supra, 
p.  3)  assured  to  the  associates  a  usufructuary  ownership 
("  Eigen  ")  in  the  hide  in  the  sense  of  that  law,  though  not  in 
that  of  the  Territorial  law,  and  a  collective  ownership  of  the  mark ; 
and  it  was  also  customary  to  concede  them  an  autonomy,  as  con- 
cerned the  mark,  which  was  defined  and  protected  by  the  manorial 
law.  Of  course  these  things  remained  in  a  flux  of  development, 
and  development  was  possible  in  two  different  directions :  it 
might  lead  to  a  gradual  strengthening  of  the  association's  powers 
and  to  a  repression  of  the  power  of  the  manorial  lord,  or  it  could 
lead  to  a  complete  absorption  of  the  former  into  a  fully  developed, 
unqualified  sole  ownership  of  the  lord.  In  the  course  of  time  there 
developed  in  connection  with  these  manorial  groups  the  concep- 
tion of  the  "  Anstalt  "  or  "foundation" — a  personified  in- 
stitution —  as  a  wholly  passive  body  of  individuals  who  found 
in  their  lord   a  center  of  union   (infra,  §  23). 

(V)  Transformations  of  the  Old  Mark-association.  (1)  The 
Commune  and  Mark-association  distinct  Corporate  Associations 
("  Korperschaften  ").  —  As  already  remarked,  the  tendency 
toward  a  differentiation  of  the  group  as  distinguished  from  the 
associates  was  already  growing  in  the  Middle  Ages.  Neverthe- 
less, the  recognition  of  the  aggregate  of  fellows  as  a  distinct  legal 
personality,  thit  is  as  a  corporate  association  in  the  sense  of 
Germanic  law  (infra,  §  22),  was  first  realized,  not  in  the  rural  but 
in  the  city  communes.  These  were  similarly  developing.  "  The 
economic  as  well  as  the  legal  status  of  a  town  commune  was  origi- 
nally no  different  from  that  of  the  rural  commune."  ^  It  also 
generally  had  commons,  though  these  lost  their  old  importance 
in  the  larger  cities  the  more  agriculture  and  grazing  diminished 
relatively  to  trade  and  industry.  At  the  same  time  the  single- 
ness of  ends  characteristic  of  the  rural  commune  disapi)eared. 
The  varied  problems,  political,  economic,  and  cultural  in  nature, 
'  Ileusler,  "Institutionen",  I,  306. 
122 


Chap.  Ill]    JURISTIC   PERSOXS   AND   OTHER   ASSOCIATIOXS  [§  17 

whose  solution  the  city  was  undertaking  with  the  help  of  its  new 
wealth  built  up  out  of  the  taxes  of  the  residents  (and  no  longer 
primarily  destined,  by  any  means,  to  the  mere  usufruct  of  the 
residents),  made  it  appear  as  the  instrument  of  an  independent 
power  and  will  that  was  plainly  detached  from  the  interests 
of  the  citizens  considered  individually.  In  this  way  the  town 
grew  into  a  corporately  organized  political  commune  with  its 
own  recognized  legal  personality.  Now  conditions  were  different 
in  the  rural  communes  in  so  far  that  a  predominance  was  always 
retained  in  them  by  economic  interests,  relatively  to  which  their 
political  aspect  was  sharply  subordinated.  Yet  in  these  also 
the  individual  began  increasingly  to  feel  a  distinction  between 
himself  and  the  association  quite  in  contrast  with  the  views 
of  the  early  JMiddle  Ages.^  And  this,  in  its  turn,  influenced  the 
transformation  of  the  village  commune  of  the  open  country  into 
an  independent  ''  corporate  association  ",  so  that  wherever  the 
village  commune  and  mark-association  were  united  in  the  old 
way  and  so  long  as  they  remained  so,  the  collective  right  in  the 
mark  inhering  therefore  in  the  commune,  the  collective  owner- 
ship of  the  mark,  which  was  formerly  only  "  associational  ",  be- 
came "  corporate  "  in  character  (infra,  §  33).  Here  too,  how- 
ever, the  economic  association  ultimately  became  completely 
separated  from  the  political  commune,  so  that  the  village  commune 
and  the  mark-association  appeared  side  by  side  as  two  independent 
"  Korperschaften  ",  which  were  no  longer  necessarily  of  the  same 
personal  membership.  This  separation  was  connected  with 
changes  that  took  place  in  the  membership  of  the  mark-asso- 
ciation. 

(2)  Transformation  of  the  Mark-association  into  an  Economic 
Association  of  Privileged  Members  of  the  Commune.  —  Every  person 
in  independent  possession  of  a  hide  who  belonged  to  the  associa- 
tion by  birth  or  adoption  was  originally,  as  already  stated,  a 
"  full  "  associate,  and  shared  as  such,  by  virtue  of  his  right 
of  membership,  in  the  usufructuary  rights  in  the  common  lands. 
The  ordinary  landless  hired  laborers  ("  Hintersassen  "),  the  cot- 
ters, hovelers,  cottagers  and  the  like,  settled  on  little  plots  without 
practicing  true  husbandry ;  the  feudal  tenants  planted  on  the 
lands  of  others ;  and,  finally,  the  landowners  dwelling  outside 
the  mark  ("  Ausmiirker  ")  were  associated  with  the  markmen 
solely  for  mutual  defense  ("  Schutzgenosse  "),  and  had  shares 
in  the  mark  only  indirectly  or  by  special  favor.  In  time,  the 
1  Ilubcr,  "Sehw.  Pri vatrecht " ,  IV,  275. 
123 


§  17]  THE    LAW   OF    PERSONS  [BoOK   I 

circle  of  "  full  "  associates  came  more  and  more  to  exclude  such 
communists  of  lesser  privileges,  in  order  to  prevent  a  deprecia- 
tion of  the  value  of  the  right  of  fellowship  through  the  increase  in 
number  of  those  entitled  to  defense.  This  was  accomplished,  in 
part,  by  abandoning  the  requirement  of  landholding,  retaining 
unchanged  only  that  of  an  independent  household ;  while  the 
adoption  of  strangers  either  took  place  no  more,  or  only  upon 
payment  of  high  entrance  dues.  In  this  manner  there  originated 
within  the  village  commune  personal  associations  of  families 
exclusively  entitled  to  the  usufruct  of  the  common  land,  a  "  blooded 
village-patriciate."  ^  ]\[ore  conunonly,  however,  landed  ownership 
was  maintained  as  a  condition  of  membership,  but  with  the  new 
requirement  that  every  member  own  either  one  of  the  old  home- 
steads endowed  with  such  rights  of  usufruct  or  a  "  full  "  peasant 
hide.  There  were  thus  formed  within  the  village  commune  true 
"  real  "  communes.  Finally,  in  some  regions  —  in  Switzerland, 
Hesse,  Ditmarsh  —  the  right  of  usufruct  in  the  common  mark 
became  an  independent,  heritable,  alienable,  partible,  and  accumu- 
lative ideal  share-right,  like  a  share  of  stock,  which  conferred  full 
membership  privileges  in  the  usufructuary  commune  ("  Recht- 
same  gemeinde  "  or  "  Xutzungsgemeinde  ")  that  was  constituted 
of  the  totality  of  such  shareholders. 

(VI)  Dissolution  of  the  Last  Remnants  of  the  Mark-associa- 
tions. —  Where  the  result  was  not  the  formation  of  such  special 
agrarian  corporate-associations  as  those  just  described,  into  whose 
collective  ownership  the  one-time  common  mark  passed,  this 
generally  fell  to  the  political  commune,  which  by  this  time  was 
independent.  It  thus  became  communal  property,  in  which, 
however,  the  usufructuary  rights  of  the  communists  theretofore 
entitled  to  such  might  continue.  These  rights  were  now  com- 
monly regarded  simply  as  rights  in  the  property  of  another,  unless 
they  were  classed  with  rights  in  public  streets  and  squares. 
Ownership  of  the  commonties  also  frequently  passed  to  the  Terri- 
torial rulers,  who  had  often  laid  claim  to  a  commonty-regality 
already  in  the  Middle  Ages." 

Finally,  beginning  with  the  end  of  the  1700  s  State  legislation 
undertook  a  total  dissolution  of  the  few  remaining  remnants  of 
the  old  mark-associations  and  the  relations  of  collective  owner- 
ship incident  to  them.     On  the  one  hand  the  common  fields  of 

'  Gierke,  "Privatrecht",  I,  587. 

^  Wopfncr,  "Das  Almenriregal  der  Tiroler  Landesfiirsten",  No.  9 
(lOOGj  of  Dopsch's  "P"'orschungen." 

124 


Ch.VP.  Ill]    JURISTIC    PERSONS   AND    OTHER   ASSOCIATIONS  [§  18 

arable  and  meadow,  and  therewith  every  restriction  reminiscent 
of  the  old  compulsory  regulation  of  the  common  fields,  were 
abolished  by  enclosures ;  and  on  the  other  hand,  by  the  redemption 
of  all  statutory  rights  of  usufruct  in  land,  the  usufructuary  privi- 
leges of  individuals  in  common  lands  were  done  away  with.  Above 
all;  the  so-called  discommon  ordinances  ("  Gemeinheitsteilungs- 
ordnungen  ")  that  were  issued  in  the  different  German  States  in 
the  1800  s  —  e.g.  the  Prussian  discommon  ordinance  of  June  7, 
1821,  the  Baden  commune  ordinance  of  1831,  the  Saxon  statute  of 
redemptions  and  discommons  of  1832,  the  Bavarian  commune 
statute  of  1834,  etc.  —  swept  away  the  community  enjoyment  of 
lands,  apportioning  the  commonties  on  various  principles  as 
individual  property  among  the  landowners.  In  this  manner 
most  of  the  commonties  disappeared,  particularly  in  North 
Germany.  In  South  and  West  Germany,  where  the  commonties 
had  become  for  the  most  part  public  communal  property,  and 
had  been  thereby  subjected  to  far-reaching  restraints  on  alien- 
ation, many  old  marks  continued  to  exist ;  and  so  also  in  Switzer- 
land. At  the  present  day  altered  economic  views  are  again  more 
favorably  inclined  to  commonties,  and  seek  to  hinder,  especially, 
the  partition  of  the  woodlands. 

§  18.  Neighborhood  Associations  of  more  Restricted  Purposes. 
• —  Beside  the  mark-associations  there  originated  in  the  ^Middle 
Ages  many  other  associations  which  likewise  had  for  their  end 
the  common  usufruct  of  land,  but  in  lesser  measure. 

(I)  Most  nearly  related  to  the  mark-associations  were  asso- 
ciations for  special  agricultural  purposes.  —  They  were  distin- 
guished from  the  former  by  this,  that  the  land  held  in  collective 
ownership  was  not  a  communal  mark,  and  the  associates  were  in 
no  way  united  as  members  of  a  commune.  These  associations, 
like  the  mark-associations,  very  generally  assumed  a  corporate- 
like  character  already  in  the  Middle  Ages.  Some  of  these  special 
agrarian  associations  have  persisted  down  to  the  present  day.^ 
Examples  are : 

(1)  The  ''farm  communities"  ("  Gehoferschaften  ")  of  the 
administrative  district  of  Trier :  agrarian  associations  which  hold 
collective  ownership  over  an  arable  mark.  This  is  divided  into  a 
definite  number  of  "  lots  ",  "  shares  ",  or  "  plows  ",  which  origi- 
nally corresponded  to  the  number  of  fully  privileged  associates. 

'See  Haff,  "Die  Wcide-,  Forst-  iind  Alpgenossenschaften  im  reohts- 
rheinischeii.  Bayern  imd  das  bfirs:('rli('lie  Rooht,  mit  einem  Reolits- 
gutachten",  repriiit  from  the  "Festschrift  fiir  H.  v.  Burckhard"  (1910). 

125 


§  18]  THE    LAW    OF    PERSONS  [BoOK   I 

Such  associations  later  denied  membership  to  strangers,  and 
the  shares  thereby  became  independent  objects  of  commerce. 
The  arable  is  periodically  distributed  anew  by  lot  among  the 
members,  in  the  ratio  of  the  share-holdings.  These  farm  com- 
munities have  played  a  great  role  in  the  investigation  of  economic 
and  legal  history,  for  Ilanssen  *  thought  to  identify  in  them  the 
last  remnants  of  the  primitive  Germanic  system  of  common  fields 
and  allotment  of  arable  described  by  Tacitus.  Lamprecht  has 
shown,  however,^  in  opposition  to  this  view,  that  they  originated 
much  later.  In  his  opinion,  which  Ilanssen  has  accepted,  they 
owed  their  origin  to  the  manorial  organization  of  the  900  s  to 
1300  s,  and  go  back  to  the  assarts  made  with  the  services  of  mano- 
rial serfs, — i.e.  to  manorial  tiller-unions  ("  Betriebsgenossen- 
schaften  ")  on  assarts  ("  Beunden  ") ;  associations  of  cultiva- 
tors which  then,  after  the  decay  of  the  manors,  had  retained 
ownership  of  the  fields  originally  cultivated  by  them  in  the 
service  of  their  lord.  It  is  true,  this  view  has  itself  since  been 
controverted.^  In  modern  times  woodland  and  meadow  have 
become  predominant  over  the  arable,  and  the  modern  farm 
communities  (of  which  in  1878  there  were  still  20  in  the  admin- 
istrative district  of  Trier)  have  thus  become  very  similar  to  the 
"  Allmende  "  corporations  alluded  to  above  (p.  124). 

(2)  The  "Hauberg"  associations  of  the  region  of  Siegen  in 
Westphalia  ^  are  woodland  associations  whose  property  includes 
so-called  "  Ilauberge  ",  or  leafwood  copses  on  the  mountain  sides. 
Every  "  Hauberg  "  is  subjected  to. a  rotation  period  of  sixteen  or 
eighteen  years ;  the  district  is  therefore  divided  into  sixteen  or 
eighteen  "hews"  or  "fellings"  —  i.e.  rotation  parcels  —  of 
which  one  is  cut  over  yearly,  while  the  others  are  meanwhile 
wholly  enclosed  or  used  for  grazing  or  as  arable.  The  "  hews  " 
or  "  fellings  "  vary  in  area  and  productive  value.  All  the  "  hews  " 
of  the  same  "  Hauberg  "  are  divided  into  an  equal  number  of  sub- 

'"Die  Qehoferscliaften  (Erbp:enossenschafton)  im  Repfierungs-Bezirk 
Trier",  in  the  "  Abhandlungon  "  of  the  Berliner  Akademie,  1863  ;  reprinted 
in  " Agrarhistorisehe  Abhandhingen",  I  (1882),  99  et  scq. 

^  "Deutsches  Wirtsehaftslelien  im  Mittelalter",  I,  418  ct  srg.,  and  art. 
" Gehoferschaf ten "  in  "  llandworterbueh  der  Staalswissenschaften",  IV 
(3d  ed.  1909),  .553  ct  scq. 

^  Rorif},  "Die  Entstehunp:  der  Landeshoheit  des  Trierer  Erzbischofs 
zwnsc'hen  Saar,  Mosel  und  Ruwer.  Anhang :  Zur  Entstehung  des 
Agrarkommunisnuis  der  Gehoferschaften ",  Westd.  Z.  G.  K.,  "Ergan- 
zungsheft  Vi"  (19()(>). 

*  Dcliiis,  "Ilauberge  und  Haiibergsgenossensehaften  des  Riegerlandes. 
Eine  reehtsgeschiehtliehe  und  doginatisehe  Untersuchung",  No.  101 
(1910),  of  Gierke's  "Untersucliungen. " 

126 


Chap.  Ill]    JURISTIC   PERSONS   AND   OTHER   ASSOCIATIONS  [§  18 

divisions  called  "  Jahne  "  ("  strips  ").  These  strips  are  measured 
in  terms  of  an  imaginary  unit,  which  furnishes  the  basis  for 
the  allotment  of  the  hews  among  the  associates.  The  strips  are 
therefore  mere  quota  rights,  to  which,  however,  there  correspond 
definite  pieces  of  land  in  the  hew.  The  number  of  strips  into 
which  the  hew  is  divided  is  identical  with  the  number  of  persons 
having  rights  in  the  "  Hauberg  "  as  it  existed  at  the  time  of  the 
introduction  of  the  strip  system.  By  subsequent  alienation  or 
inheritance  complicated  subdivisions  were  formed.  The  "  Hau- 
berg "  system  of  woodland  management  has  been  regulated  in 
recent  years  by  special  "  Hauberg  ordinances "  applicable  to 
the  Circles  in  which  such  woodlands  still  exist,  —  Siegen,  Dill, 
Oberwesterwald,  and  Altenkirchen.  A  Nassau  ordinance  of 
1804  still  serves  for  the  administrative  district  of  Wiesbaden. 

(3)  The  Alp  associations  in  Switzerland  are  to-day  purely  private 
associations  which,  especially  in  the  canton  of  Unterwalden,  prac- 
tice a  communit}"  agriculture  of  the  Alps.  An  Alp  is  terraced 
into  a  certain  number  of  share-rights  ("  cow-rights  ",  "  cow- 
feeds  "),  which  in  turn  may  be  divided  down  to  "  quarter-cows  " 
or  "  hoofs." 

(4)  In  the  Middle  Ages  vineyard  associations  were  common 
which  practiced  a  common  cultivation  of  vineyards,  and  pos- 
sessed for  this  end  a  corporate-associational  organization. 
Supervision  of  the  vineyards,  the  police  of  roads  and  boundaries, 
the  setting  of  the  slips,  and  the  regulation  of  the  vintage,  were  the 
chief  objects  of  associate  action. 

(H)  The  associations  developed  under  the  law  of  waters  and 
mining  were  similar  to  the  mark-associations,  although  no  definite 
piece  of  land  constituted  their  material  basis.  These  included 
fishery,  dike,  and  sluice  fellowships,  and  mining  associations 
("  Gewerkschaften  ").  They  will  receive  further  treatment  below 
under  the  law  of  things  (§§  40^1). 

(HI)  Finally,  mention  may  be  made  of  the  transportation 
unions  that  arose  in  the  Middle  Ages  and  endured  well  into 
modern  times.  To  these  belonged  the  so-called  "  road-associa- 
tions "  ("  Rottgenossenschaften  ",  —  roaders'  union)  of  Bavaria 
and  the  Tyrol,^  as  well  as  the  frontier  "  port-associations  "  cf 

^Johannes  Muller,  "Das  Rodweson  Baierns  und  Tirols  im  Spiit- 
mittelalter  und  zu  Besinn  der  Neuzeit",  in  Vj.  Soz.  W.  G.,  Ill  (1905), 
3(50-420,  555-02f);  Stolz,  "Zixr  Gesehiehte  der  Orfjanisation  des  Trans- 
portwesens  in  Tirol  im  Mittelalter",  in  same.  VIII  (1910),  1G9-2G7; 
Haff,  "Zur  Reehtsgeschiehte  der  mittelalterliehen  Transports:enosscn- 
seliaften",  in  Zr-  R.  G.,  XXXI  (1910),  253-282. 

127 


§  18]  THE    LAW    OF   PERSONS  [BoOK  I 

eastern  Switzerland ;  ^  companies  of  entrepreneurs  which  on  one 
hand  attended  to  the  maintenance  of  the  Alpine  passes,  and 
on  the  other  hand  claimed  a  more  or  less  extensive  monopoly 
of  transportation.  In  the  communes  having  rights  of  "  road  " 
those  villagers  were  members  of  the  road-association,  who  also 
shared  as  markmen  in  the  usufruct  of  the  commonty.  The 
purpose  of  such  roaders'  unions  was  to  attend  to  the  transport 
of  goods  upon  the  great  roads  ("  auf  der  Rod  zu  fertigen  ") 
that  led  from  Ulm  through  Lnndeck,  Meran,  and  Tricnt,  and 
from  Augsburg  through  Innsbruck  and  Toblach,  to  Venice. 
Ports  were  maintained  on  the  Septimer-road  between  Chur  and 
Chiavenna  (four) ;  on  the  Spliigen-road  between  Chur  and 
Chiavenna ;  and  on  the  St.  Bernhard-road  between  Chur  and 
Bellinzona  (six).  All  the  "  ports "  of  each  highway  were 
organized,  and  held  regular  sessions  under  the  presidency  of 
port-magistrates.     The  roaders'  unions  were  also  organized. 

§  19.  The  Craft  Gilds.^  (I)  Origin. — The  craft  gilds  owed 
their  origin  to  the  increasing  prosperity  of  the  medieval  cities. 
They  are  therefore  of  considerably  later  origin  than  the  rural 
mark-associations,  the  oldest  reports  of  them  being  of  the  1100  s. 
And  in  their  case  the  legal  independence  of  the  association  as  such, 
and  its  corporate-like  organization,  were  from  the  beginning  more 
sharply  and  more  consistently  realized. 

(1)  The  opinion,  formerly  widespread,  that  the  craft  gilds  were 
derived  from  unions  of  unfree  manorial  craftsmen  ("  the  manorial 
theory")  is  to-day  generally  abandoned.^  As  little  can  their 
origin  be  traced  to  the  dissolution  of  a  "  greater  gild  "  that  pre- 
ceded them.     For  general  gilds  vierchant  ("  Kaufmannsgilden  ") 

1  A.  Schnlte,  "Geschiehte  des  mittelalterlichen Handels  und  Verkehrs", 
I  (1900),  372. 

2  Hegel,  '.'Stadte  und  Gilden  der  |2:ermanischon  Volker"  (2  vols.,  1S91) ; 
Keutgen,  "Amter  und  Ziinfte.  Zur  Entstehunt?  des  Zunftwesens"  (1003) ; 
Frensdorff,  essav  cited  in  §  14  supra;  v.  Below,  art.  "Ziinfte"  in  W.  B. 
derVolksw.,  ir(2cl  ed.  1907),  142r)-35,  "Zur  (leseliichte  des  Handwerks 
und  der  Gilden",  in  Hist.  Z.,  evi  (3d  ser.  10,-1911),  2G8-291,  and  "Dio 
Motive  der  Zunftbildung  im  deutschen  Mittelalter",  in  same,  CIX  (3d 
ser.,  13,— 1912),  23-48;  Stiedn,  art.  "Zunftwesen"  in  H.  W.  B.  der 
Staatsw.,  VIII  (3d  ed.,  1911),  1088-1111. 

» The  manorial  theory  has  recently  been  apain  adopted,  although  with 
changes  that  are  concessions,  by  Secligcr,  "Staat  und  Grundherrschaft  in 
der  jilteren  deutschen  Geschiehte"  (1909),  and  by  Walthcr  .U(/7/r;-,  "Zur 
Frage  des  Ursprungs  des  mittelalterlichen  Ziinfte.  Eiiie  Wirtschafts  und 
verfassungsge.schiclitlicho  Untorsuchung",  No.  21  (1911)  of  Branden- 
hurq's  "  Abhandlungen"  ;  bv  the  latter  with  the  approval  of  Schmnller, 
in  his  .1.  B.,  XXXV  (1911),  2033-36.  In  criticism  of  Seeliger  see  v.  Beloio 
in  the  Hist.  Z.,  CVI  (3d  ser.,  10),  as  above  cited  ;  and  in  criticism  of  Mutter, 
also  V.  Below  in  same,  cvii  (3d  ser.,  11,  — 1911),  591  et  seq. 

128 


Chap.  Ill]    JURISTIC   PERSONS   AND   OTHER   ASSOCIATIONS  [§  19 

of  the  kind  that  existed  in  the  Netherlands,  Flanders,  England, 
and  elsewhere,  have,  it  seems,  not  been  provable  in  Germany. 
Yet  undoubtedly  -there  existed  there  also,  and  at  an  early  day, 
special  gilds  of  merchants,  who  traded  either  in  certain  wares  or 
with  certain  foreign  market-towns.  These  gilds  of  merchants 
and  itinerant  traders  became  less  important  when  increasing  se- 
curity of  intercourse  made  less  imperative  the  need  of  alliance. 
Nevertheless,  gilds  of  merchants  trading  to  foreign  parts  main- 
tained themselves  for  a  very  long  time,  —  for  example  the  Asso- 
ciation of  Herring  Fishers  in  Liibeck ;  and  along  with  these  there 
were  unions  of  German  merchants  in  foreign  lands,  such  as 
the  hanse  of  German  merchants  in  Nowgorod,  Bergen,  Brugge, 
and  London. 

(2)  Craft-companies  ("  Amter  ").  —  Contrary  to  the  above 
theory,  the  development  of  the  crafts  seems  to  have  had  its  start- 
ing point  in  official  market  regulations  issued  by  local  govern- 
mental authorities  (Keutgen's  theory). ^  From  the  Carolingian 
time  the  control  of  markets  was  included  among  the  powers  of 
public  officials,  or  later  among  those  of  the  city  lords,  especially 
the  bishops,  and  they  assigned  the  administration  of  the  trade  police 
and  the  jurisdiction  of  the  market  court  either  to  the  regular  tov/n 
magistrate  or  to  a  special  administrative  official  ("  Kammerer  ", 
chamberlain,  custodian).  In  order  to  exercise  an  effective  con- 
trol of  the  market  the  sellers  were  divided  into  groups  of  single' 
traders,  and  separate  stands  ("  Stande  ")  were  assigned  to  them. 
These  groups  of  artisans  and  tradesmen  were  the  "  companies  " 
("Amter"  or  "  magisteria ").  They  were  based  exclusively 
upon  the  market  ordinances  issued  by  the  municipal  authorities. 
The  local  government  soon  came  to  restrict  itself  to  a  general 
oversight ;  it  set  over  the  gilds  masters  taken  from  the  unions, 
who  held  the  court  and  (often  aided  by  a  committee)  exercised 
the  police  power. 

(3)  Fraiernities. — The  essential  characteristic  of  free  associ- 
ation, wlflch  marked  the  later  craft  gilds  but  was  still  lacking 
the  craft  companies,  made  progress  in  the  craftsmen's  unions  as 
soon  as  the  artisans,  united  for  industrial  purposes  in  the  companies 
created  by  the  market  authorities,  extended  the  purposes  of  those 
unions  beyond  industrial  matters  to  social,  charitable,  and  reli- 
gious ends.  This  was  the  more  natural  because  it  gave  ex]:)ression 
to  an  old  Germanic  idea,  afterward  strengthened  by  Christianity, 

1  The  opponents  of  this  theory  are  indicated  by  v.  Below  in  Hist.  Z., 
cix  (3d  ser.,  13,-1912),  24,  note  2. 

129 


§  19]  THE    LAW    OF    PERSONS  [BoOK   I 

that  those  with  whom  one  stands  in  close  relationship,  even  though 
not  one  of  blood,  are  brothers,  and  that  such  brotherhood  should 
be  employed  in  a  common  cultivation  of  spiritual  interests,  — 
which  in  those  times  ordinarily  found  primary  expression  in  reli- 
gious and  churchly  communion.  The  old  Germanic  brother- 
hood was  a  community  of  board  (hence  Mid.  Low  G.  "  mat- 
schap  ",  ]\Iod.  Dutch  "  maatschapij  "),  a  community  of  bread 
("  Kompagnie "  from  "  panis "),  a  community  of  the  bowl 
("  convivium  "),  a  gild,  —  in  short  "a  gathering  for  festive  eat- 
ing and  drinking."  Further,  it  was  a  fellowship  of  covenanters 
("  coniuratio  ")}  The  craftsmen  started  from  these  old  ideas 
and  institutions,  and  the  brotherhood  ("  fraternitas ")  offered 
them  the  institutional  type  by  which  to  pass  from  the  position  of 
a  branch  of  the  municipal  administration  to  that  of  a  free  society. 
The  immediate  result  was  an  intimate  fusion  of  the  very  diverse 
elements  that  had  been  brought  together  in  the  companies,  — 
freemen  and  men  formerly  unfree,  native  townsmen  and  immi- 
grants ;  and  which  had  theretofore  wholly  lacked  all  coherence, 
such  as  resulted  in  the  mark-association  from  the  earlier  relation- 
ship of  blood.  And  although,  as  is  readily  understood,  the  local 
governmental  authorities  were  in  no  wise  friendly  disposed  to  any 
endeavors  of  the  city  population  toward  union,  such  tendencies 
toward  religious  and  ecclesiastical  unity  must  nevertheless  have 
been  least  unwelcome  to  them,  especially  to  the  clerical  authorities. 
Indeed,  they  owed  their  origin,  to  a  great  extent,  precisely  to 
clerical  incitement.  Their  churchly  ends,  like  their  commercial 
purposes,  being  of  a  public  nature,  the  establishment  of  craft 
gilds  that  were  to  be  at  the  same  time  fraternities  required 
the  authorization  of  ecclesiastical  authority.  Moreover,  it  was 
not  true  that  every  craft  gild  of  later  times  had  necessarily  orig- 
inated in  a  compan}' :  freedom  of  association  was  the  basis  of 
many  of  the  later  crafts  from  the  beginning.  Nevertheless,  the 
craft  gild  as  a  special  type  of  association  is  to  be  conceived  of  as 
having  originated  in  a  coalescence  of  company  and  fraternity. 

(II)  Essential  nature  of  the  Craft  Gilds.  (1)  TJie  Principle 
of  "Gild-coercion"  ("  Zunftzwang  ").  —  The  craft  ("  Zunft  ", 
from  "  zicmen  ",  to  be  fit),  a  name  which  was  used  exclusively 
in  South  Germany  down  into  the  1500  s  for  what  were  ordinarily 
cnllcd  in  North  Germany  "  gilds  "  ("  Gilden  "),  was  a  union  that 
affected  the  entire  personality  of  the  gildmen,  being  therein  akin 

'  See  Pappenheim,  "tlber  kiinstliche  Verwandtsehaft  im  germanischen 
Recht",  in  Z."  R.  G.,  XXIX  (1908),  304-333. 

130 


Chap.  Ill]    JURISTIC    PERSONS    AND    OTHER   ASSOCIATIONS  [§  19 

to  the  mark-association.  It  concerned  itself  with  all  their  rela- 
tions, under  both  private  and  public  law,  those  that  were  social 
and  those  merely  human.  For  this  reason  the  whole  family 
of  an  associate,  not  merely  himself  alone,  belonged  to  the  craft 
gild.  But  in  the  crafts,  as  in  the  mark-association,  the  economic 
purpose  was  primary-;  they  were  essentially  economic  associa- 
tions. From  this  aspect  their  most  important  characteristic  was 
the  principle  of  "  gild-coercion  ",  which  was  already  essential  in 
the  administrative  "  companies."  "  Gild-coercion  "  meant  that 
definite  handiwork  or  industrial  tasks  ("  Werk  ")  were  assigned 
to  each  union  as  its  peculiar  field  of  activity  and  production ;  and 
that  only  its  members  had  the  right  to  exercise  these  callings 
and  perform  such  work  within  the  town-limits  or  the  surrounding 
"  banlieue  ",  and  to  offer  there  the  products  of  their  labor  for  sale. 
At  the  same  time,  the  question  was  not  one  merely  of  handiwork 
in  the  true  sense ;  on  the  contrary  the  trades  of  fishermen,  tilers, 
vintagers,  and  innkeepers  were  frequently  organized  as  crafts ; 
and  various  classes  of  merchants,  money-changers,  etc.,  formed 
gilds,  for  the  most  part  of  great  prestige.  The  medieval  view 
did  not  distinguish  between  tradesmen  ("  Handler  ")  and  indus- 
trials {"  Gewerbetreibende  "),  but  included  both  under  the  common 
conception  of  the  merchant  ("  mercator  ",  "  Kaufmann  "). 

The  right  to  prosecute  their  respective  handiwork  or  industries 
inured  to  the  gildsmen  collectively;  but  it  was  imposed  upon 
them,  also,  as  a  collective  duty.  Especially  in  the  flowerage 
period  of  gild  and  city  life  the  artisans  regarded  themselves  on 
that  account  as  officials,  and  men  looked  upon  the  craft  as  an 
office  to  be  administered  with  the  utmost  possible  fidelity  and 
conscience.  Consequently,  not  alone  the  public  authorities  but  the 
gild  itself  protected  the  interests  of  the  public  through  associa- 
tional  oversight,  by  means  of  penalties,  price-tariffs,  and  otherwise. 
On  the  other  hand,  the  craft  was  supposed,  from  its  beginning, 
to  guard  and  further  the  interests  of  its  members  and  realize 
equality  and  fraternity  among  the  gild  fellowship,  to  the  end  that 
none  might  sink  to  the  position  of  a  dependent  wage-earner,  nor 
raise  himself  above  his  fellows  by  an  undue  extension  of  his  busi- 
ness. Above  all,  it  should  prelude  the  competition  of  workers 
not  included  in  the  gild,  —  who  were  later  known  as  "  Bonhasen  " 
(bunglers). 

(2)  Organization.  —  From  the  beginning  the  gilds  possessed  a 
regular  organization  which  was,  in  substance,  always  the  same. 
In  earlier  times  it  rested  upon  the  craft  privileges  conferred  by 

131 


§  10]  THE    LAW    OF    PERSONS  [BoOK  I 

the  jnihlic  authorities ;  later  it  was  recorded  in  the  gild  rolls  and 
further  developed  as  a  result  of  the  autonomy  conceded  to  the 
crafts. 

(A)  IMembership.  —  Since  the  essence  of  the  craft  gild  was  an 
organized  community  of  labor,  and  since  every  worker  was  obliged 
by  the  principle  of  "gild  coercion  "  to  enter  that  organization  which 
corresponded  to  his  calling,  the  rules  concerning  memberships 
constituted  the  most  important  part  of  the  gild  law.  And  though 
even  at  an  early  date  special  circumstances  might  make  the  gild  a 
close  corporation,  —  as  e.g.  when  all  the  stalls  or  shops  assigned 
to  a  particular  industry  were  occupied,  to  the  last  place,  —  never- 
theless acquisition  of  membership  was  generally  little  impeded 
in  early  times.  ^Yhoever  had  gone  through  the  preparatory  school- 
ing of  apprentice  and  journeyman,  had  passed  his  master's  exam- 
ination, and  had  completed  his  master-work,  and  paid  certain 
fees,  was  taken  in,  provided  he  had  also  become  a  burgher  of  the 
city.  For  men  at  first  regarded  the  increase  of  members  as  an 
advantageous  strengthening  of  the  gild,  economically  and  politi- 
cally, not  as  an  unwelcome  lessening  of  their  share  in  the  labor 
market.  Only  toward  the  end  of  the  IMiddle  Ages  did  an  increas- 
ing exclusiveness  come  to  be  dominant. 

(B)  Organs.  —  The  organs  of  the  gild  were  those  that  every- 
where recur  in  German  corporations  :  the  assembly  of  members  and 
the  directorate.  The  former  —  which,  on  account  of  the  hour  at 
which  it  originally  always  met  was  also  called  the  morning  parley 
("  Morgensprache  ")  or  "  breakfast  "  parley  —  exercised  the  rights 
of  autonomy  granted  to  the  gild,  making  decrees  relative  to  the 
gild-property,  and  when  necessary  establishing  new  by-laws.  At 
the  same  time  it  was  subject  to  the  oversight  of  the  public  author- 
ities, —  that  is,  the  town-council ;  which  in  Liibeck,  for  example, 
was  exercised  by  delegating  two  councilmen  (so-called  "  morning- 
parley  men  ")  to  the  gild-assemblies,  notice  of  whose  sessions  was 
given  to  the  council.  One  or  several  "  masters  "  ("  Zunft-  ", 
"  Amts-  ",  "  Gilde-meister  ")  constituted  the  directorate  :  they 
too  were  subordinated  in  a  definite  way  to  the  council,  and  must 
take  oath  to  it  to  take  care  that  the  gild  should  do  nothing  preju- 
dicial to  the  common  weal  of  the  city.  The  gild-masters  exer- 
cised the  right  of  autonomous  judicature  which,  like  that  of 
legislation,  belonged  to  the  gild  :  gildsmcn  who  violated  the  gild 
ordinances  were  punished  by  them,  acting  as  the  gild-court,  or 
the  wrongdoers  were  expelled  from  the  craft.  Civil  controversies 
of  lesser  import  between  fellow  craftsmen  must  be  brought  before 

132 


Chap.  Ill]    JURISTIC   PERSONS  AND   OTHER   ASSOCIATIONS  [§  19 

the  gild  judges  for  settlement ;  if  outsiders  desired  to  make  com- 
plaint against  gildsmen  they  must,  before  applying  to  the  public 
court,  apply  to  the  gild  masters  for  an  adjustment.  Above  the 
gild-court  stood,  as  a  court  of  second  instance,  the  council  or  the 
court  of  the  city's  lord. 

(3)  Corporate  Character  of  the  Craft  Gild.  —  From  the  beginning 
the  entire  body  of  gild  members,  as  such,  stood  opposed  to  the 
individual  associate  in  an  independence  far  more  pronounced 
than  was  originally  the  case  in  the  mark-associations,  and  this  is 
explained  by  the  fact,  already  adverted  to,  that  there  was  not 
in  the  case  of  the  crafts,  as  there  was  in  the  case  of  those  associa- 
tions, a  complete  coincidence  of  the  purposes  of  the  group  with 
those  of  the  members.  The  craft  was  not  from  the  beginning 
designed  to  further  merely  the  interests  of  individuals ;  we  have 
seen  that  it  was  precisely  the  older  period  when  the  idea  was 
vital  that  it  had  ends  to  fulfill  in  the  interest  of  the  association, 
the  city,  and  the  purchasing  public.  But  though  it  was  thus, 
as  a  body,  distinct  from  its  members,  —  possessing,  for  example, 
in  the  seal  it  used  an  external  sign  of  this  independence,  —  never- 
theless, there  was  no  more  realized  in  it  than  in  the  mark-associa- 
tion a  total  separation  of  the  association,  as  such,  from  the  physi- 
cal persons  of  the  members  who  composed  it.  In  particular,  the 
gild  property  was  not  the  property  of  an  independent  third  person  ; 
it  could  not  have  seemed  to  the  gild  fellows  a  thing  wholly  alien 
to  themselves.  The  gild-chambers,  the  gild-furniture,  the  capital 
accumulated  by  contributions,  entrance  fees,  and  penalties,  and 
gifts,  served  not  alone  the  ends  of  the  association,  but  also  the 
economic,  social,  and  other  purposes  of  the  members.  Every 
associate  might,  for  example,  use  the  gild-houses  for  his  convivial 
pleasures ;  each  could  demand  support  or  loans  from  the  capital 
of  the  gild ;  and  so  on.  These  benefits  were  not,  however,  in- 
dispensable to  the  gild  members  in  the  same  way  that  the  usu- 
fruct of  the  commonty  was  to  the  markmen ;  the  gild-property 
was  devoted  in  far  greater  degree  to  the  whole  body  as  such.  It 
was  not  merely  an  associational  but  a  corporate-like  associa- 
tional  collective  property  (infra,  §  33). 

(Ill)  Decline  and  Disappearance  of  the  Crafts.  —  The  organi- 
zation of  industries  in  crafts  continued  to  flourish,  speaking  gener- 
ally, down  into  the  1500  s,  notwithstanding  that  some  abuses 
manifested  themselves  earlier.  From  that  period  onward  the  craft 
system  fell  into  an  increasing  torpidity  and  rcnitence  which,  in 
conjunction  with  the  general  decline  of  intellectual  culture  and 

133 


§  10]  THE    LAW   OF    PERSONS  [BoOK   I 

material  civilization,  led  finally  to  complete  decay.  From  re- 
motest times  the  regulation  of  entrance  conditions  to  the  gild 
had  been,  as  already  remarked,  essential  to  the  gild-organization 
and  with  good  reason,  since  the  crafts  were  supposed  to  be  respon- 
sible for  good  workmanship.  Hence  the  requirement  of  the  master's 
examination,  and  the  exhaustive  regulation  of  apprenticeship  and 
journeyman's  service.  But  these  institutions  were  now  made  over 
in  uncompromisingly  monopolistic  fashion.  "  Egoism  became  su- 
preme in  place  of  public  spirit."  ^  Membership  in  the  crafts  came 
to  be  a  purchasable  thing  ;  members  of  the  gild  families  were  shown 
preferences  formerly  unheard  of  over  strangers ;  the  journeyman 
system,  instead  of  being  used  to  broaden  the  workers'  views,  as  was 
so  necessary,  was  developed  into  a  most  oppressive  fetter.  Above 
all,  the  requirement  of  stainless  civil  honor  ("  Ehre  ")  was  over- 
emphasized to  a  most  unreasonable  degree.  Illegitimate  birth 
constituted  an  absolute  cause  for  exclusion,  not  to  be  avoided 
even  by  legitimation  (supra,  p.  107) ;  which  must  have  seemed 
the  stranger  because  the  other  social  estates  tolerated  in  this 
same  period  decidedly  free  ideas  on  that  point.  It  could  justly  be 
said  that  the  1700  s  saw  bastards  climb  to  the  highest  honors 
in  State  and  army,  but  cobblers  and  tailors  they  could  not  have 
become  in  a  German  town.  And  equally  extravagant  was  the 
extension  given  to  the  concept  of  dishonorable  industries  (supra, 
p.  107). 

Thus,  precisely  because  of  the  craft  organization  German 
handicraft  continuously  declined.  In  place  of  seeking  the  intro- 
duction of  fresh  blood,  it  timidly  shut  the  way  to  this.  From 
the  proud  burgher  who  had  once  defended  his  city  in  arms,  there 
sprang  the  jibe-provoking  "  Spiess.biirger  "   ("  piddle  burghers  ", 

—  of  parochial  outlook  and  cheese-paring  policies)  or  philistines. 
The  word  "  gild-spirit  "  ("  Zunftgeist  ")  acquired  at  that  time 
its  unpleasant  secondary  meaning. 

The  abuses  of  the  old  gild  system,  which  nevertheless  found  a 
warm  defender  only  shortly  before  its  complete  disappearance  in 
so  perspicacious  a  man  as  Justus  ]\Ioser,  demanded  ever  more 
insistently  a  remedy.  The  municipal  authorities  being  too  weak 
to  achieve  reforms,  the  imperial  and  Territorial  governments 
finally  intervened.     But  the  endeavors  made  by  tliese  in  the  17{)()  s 

—  the  decree  of  the  Imperial  Diet  in  17.'31,  and  the  Territorial 
statutes  associated  with  that  (supra,  j).  107)  —  failed  to  bring 
about  any  lasting  improvement.     And  thus  men  finally  found 

'  Frcnsdorff,  in  Hans.  G.  B.,  1907,  Gl. 
134 


Chap.  Ill]    JURISTIC    PERSONS    AND    OTHER   ASSOCIATIONS  [§  20 

themselves  compelled  in  Germany,  following  the  example  of  France, 
to  do  away  completely  with  the  crafts  in  their  character  of  invol- 
untary organizations  of  city  artisans  endowed  with  exclusive  indus- 
trial privileges.  This  was  done  in  Prussia  by  the  edict  of  Nov.  2, 
1810,  and  the  statute  of  Sept.  7,  1811 ;  and  the  Imperial  Industrial 
Code  ("  Reichsgewerbeordnung  ")  of  June  21,  1869,  accomplished 
as  much  for  all  Germany.  In  more  recent  years  imperial 
legislation  has  again  abandoned  the  principle  of  unqualified  in- 
dustrial freedom,  and  introduced  anew  gild-like  organizations. 
Supplements  to  the  Industrial  Code,  particularh'  the  statutes  of 
July  18,  1881,  and  July  26,  1897,  once  more  conferred  upon  trade 
unions  ("  Handwerkerinnungen  ")  a  compulsory  character,  sub- 
ject to  definite  preconditions.  These  unions  of  the  present-day 
law  are  juristic  persons,  —  societies  ("  Vereine  ")  in  the  sense 
of  the  Civil  Code,  —  and  indeed  public  corporations  ("  offentliche 
Korperschaften  "). 

§  20.  Other  Associations  without  the  Bond  of  Vicinage.  — 
Just  as  there  developed  alongside  of  the  mark-associations  other 
groups  bound  together  by  interests  connected  in  some  way  w'ith 
landholding,  so  the  craft-gilds  were  accompanied  by  numerous 
other  associations  w^hich  in  part  pursued  industrial  ends  and 
in  part  other  purposes,  without,  however,  being  consolidated  by 
bonds  of  vicinage. 

(I)  Industrial  Associations.  —  To  these  belonged,  among  others : 
(1)  The  Minters^  Associations.  —  In  the  Middle  Ages  the 
"  Miinzherr  ",  that  is  the  holder  of  the  regality  of  coinage,  was 
accustomed  to  entrust  the  care  of  the  mint  to  a  corporate  asso- 
ciation endowed  with  various  privileges  known  as  the  "  Haus- 
genossen "  (mint  fellows),  at  whose  head  was  a  mint-master 
whom  they  freely  chose.  The  "  Hausgenossen  "  were  originally 
unfree  artisans  of  the  city  lord,  and  the  mint-master  was  chosen 
from  his  household  servitors.  Later  both  attained  a  respected 
position,  for  in  time  the  indispensable  precondition  to  member- 
ship in  the  minters'  association  came  to  be  the  possession  of  a 
fortune,  instead  of  technical  skill,  its  chief  task  having  be- 
come the  procurement  of  the  necessary  minting  metal  at 
its  own  cost  and  risk.  The  technical  labor  was  left  to  servile 
workers.  Thus  the  minters'  association  came  to  imply  member- 
ship in  a  corporation  of  high  repute ;  it  obligated  the  associates 
merely  to  a  money  contribution  and  secured  them  in  exchange  a 
share  in  the  profits  of  coinage.  This  was  employed  by  them 
principally  in  the  business  of  money  changing. 

135 


§  20]  THE    LAW    OF    PERSONS  [BoOK   I 

(2)  The  minters'  association  already  shows  the  type,  —  not 
yet,  to  be  sure,  fully  developed,  —  of  a  capitalistic  association 
{"  Kapitalgenossenschaft  ").  This  type  has  attained  in  modern 
legal  and  economic  life  an  importance  far  exceeding  that  of  all  other 
personal  unions.  oNIodern  capitalistic  associations  are  hnaginary 
unions  ("  begriffliche  Vereine  ")  in  which  a  social  fund  divided 
into  numerical  shares  constitutes  the  essential  "  raison  d'etre  " 
of  a  group  of  persons  possessed  individually  of  complete  legal 
independence.  According  to  their  form  they  are  in  part  share 
companies,  in  part  cooperative  ("  Erwerbs- ")  and  economic 
associations,  in  part  mutual  insurance  companies.  Inasmuch, 
however,  as  they  have  been  developed,  primarily,  as  products 
of  or  in  connection  with  commercial  law,  it  would  be  superfluous 
to  go  further  into  their  nature  in  this  place. 

(II)  Associations  for  Convivial,  Religious,  and  Scientific  Pur- 
poses.—  As  mentioned  above  (p.  131),  the  medieval  crafts,  in 
addition  to  their  industrial  purposes,  pursued  as  brotherhoods 
religious,  convivial,  and  social  ends.  There  were  also  at  that 
time  many  associations  that  existed  exclusively  for  such  purposes. 
It  was  precisely  the  oldest  personal  unions,  based  not  upon  kinship 
or  neighborhood  but  upon  voluntary  agreement,  that  belonged 
to  this  category.  This  was  true  of  the  Prankish  gilds  of  Carolingian 
times,  which,  like  all  Germanic  gilds  based  upon  the  idea  of  broth- 
erhood, united  within  a  peculiar  communal  life  the  religious 
end  of  spiritual  welfare  with  the  temporal  ends  of  fraternal  sup- 
port and  a  common  table  (whence  their  other  name  of  "  con- 
vivia  ").  Then  there  were  the  later  fraternities  founded  for  special 
religious  or  secular  ends.  The  religious  were  closely  connected 
with  the  church,  their  members  being  admitted  without  regard 
to  family  or  social  status,  and  obligated  to  the  practice  of  pious 
works  and  performance  of  churchly  services  that  they  might 
be  assured  eternal  salvation ;  the  secular  secured  to  their 
members  mutual  support  and  legal  aid.  Both  classes,  however, 
merged  easily  in  each  other.  Secular  gilds  for  mutual  defense 
("  Schutzgilden  ")  did  not  play  in  Germany  the  same  role  as, 
for  example,  in  England,  Denmark,  France,  and  the  Netherlands. 
The  merchant  gilds  above  mentioned  (p.  128)  may  be  reckoned 
among  these.  On  the  other  hand  ecclesiastical  brotherhoods  were 
similarly  widespread  in  Germany,  at  the  end  of  the  Middle  Ages. 
In  many  German  cities  there  were  as  many  as  a  hundred  and 
more  of  them,  —  e.g.  in  Cologne,  Liibeck,  and  Hamburg.  The 
calends-gilds  or  "  calends  ",  so  called  after  the  custom  of  the  priests 

136 


Chap.  Ill]     JURISTIC   PERSONS   AND   OTHER   ASSOCIATIONS  [§  20 

to  assemble  on  the  first  of  the  month,  were  exclusively  of  the 
ecclesiastical  class.  The  societies  of  Beguins  or  Beghards,  which 
spread  to  Germany  from  Belgium  and  were  at  times  pursued  as 
heretical,  were  very  popular,  particularly  in  North  Germany. 
Originally  intended  only  for  women,  but  later  also  for  men,  they 
often  included  both  in  a  common  household  and  community  of 
goods,  like  the  kindred  monastic  associations  of  brothers  living 
a  communal  life.  Their  members  devoted  themselves,  without 
monastic  vows,  to  industrial  labors  and  pious  and  useful  works. 

Among  associations  for  idealistic  ends  were  the  universities. 
That  these  go  back  for  their  origin  to  Germanic  legal  ideas, 
clearly  appears  from  the  beginnings  of  Bologna  and  Padua,  the 
two  t^-pe-universities  of  the  Occident.^  In  Bologna  the  "  schol- 
ars ",  i.e.  the  students,  grouped  themselves  in  free  associations 
("  universitates  "),  each  of  which  was  divided  into  a  number 
of  compatriotic  unions  called  "  nationes."  Among  these  the 
one  of  greatest  power  and  prestige  was  the  "  natio  teutonica  ", 
the  German  student  colony.  Its  archaic,  purely  Germanic  or- 
ganization shows  all  the  essential  characteristics  of  a  Cliristian- 
ized,  Germanic  frith-gild  ;  this  shows  us  that  it  was  a  phenomenon 
allied  to  the  mercantile  hansas,  the  protective  gilds  founded  by 
German  traders  in  foreign  lands.  In  Paris  the  academic  union 
was  not  composed  of  the  "  scholars  "  alone,  but  embraced  also  all 
the  holders  of  learned  degrees,  —  bachelors,  masters,  and  doc- 
tors, —  much  as  is  still  the  case  at  Oxford  and  Cambridge ;  so 
that  there  existed  there  a  union  comparable  to  the  gilds.  The 
principle  of  an  industrial  union  ("  Innung  "),  also,  was  reflected 
in  the  fact  that  the  Parisian  "  studium  generale  "  was  divided,  at 
the  beginning,  not  into  "  nations  ",  but  into  four  "  faculties  ", 
corresponding  to  the  four  learned  professions.  Later,  however,  the 
Italian  model  was  accepted  also  at  Paris,  and  the  entire  body  of 
scholars,  inclusive  of  the  magistri  of  the  Faculty  of  Arts  (our 
modern  Philosophical  Faculty),  were  divided  into  four  nations, 
at  whose  heads  stood  the  rector  chosen  by  the  masters  of  arts. 
To  him  the  masters  of  the  three  higher  faculties  were  compelled 
finally  to  bow.  The  "  studium  generale  "  itself,  the  "  University  " 
in  the  specialized  modern  sense,  thus  became  a  centralized  asso- 
ciation, and  the  rector  its  head.  "  In  this  stage  of  development 
Paris  became  the  model  of  the  universities  established  on  German 

'  Brunner,  "Dor  Antoil  des  deutschen  Rechts  an  der  Ent'^acklung  der 
UniversitJiten",  rcctoral  address  (Berlin),  15  Oct.  189G,  reprinted  in  the 
"Deutsehes  Woehenblatt",  IX  (189G),  No.  43. 

137 


§  20]  THE    LAW   OF   PERSONS  [BoOK   I 

soil."  The  oldest  German  universities  constituted,  therefore, 
"  voluntary,  self-perpetuating  corporate-associations.  They  pos- 
sessed, as  entities,  a  quantity  of  special  rights  and  duties,  but 
above  all  the  usual  riglits  of  associations;  particularly, — 
besides  the  right  of  public  instruction  and  its  consequences  — 
autonomy,  judicature,  and  self-government,  the  free  determina- 
tion of  their  own  organization  and  choice  of  directors  and  organs, 
the  admission  and  exclusion  of  members,  and  the  capacity  to 
carry  on  trade  and  to  hold  pro})erty  under  the  private  law."  ^ 
Their  branches,  the  individual  faculties,  formed  separate  cor})ora- 
tions.  The  associations  of  the  students  —  the  colleges  and 
students'  gilds  ("  Kollegien  ",  "  Bursen  ")  —  early  lost  importance 
in  Germany,  as  compared  with  England. 

(Ill)  Finally,  political  ends,  —  which  were  important  even  in 
the  case  of  many  of  the  associations  already  referred  to,  especially 
the  craft  gilds,  —  might  be  the  essential  incentive  to  union.  For 
example,  there  appeared  in  many  medieval  towns  so-called  gilds 
of  "  ancient  burghers  "  ("  Altbiirgergilden  "),  "  tavern  clubs  '* 
("  Stubengesellschaften  "),  "  round-tables  "  {"  Artushofe  "), 
"  Junker  clubs  "  ("  Junkerkompagnien  "),  and  commensal  and 
drinking  fellowships  ("  Konstaffeln  ") ;  all  of  which,  though  dedi- 
cated incidentally  to  the  promotion  of  good  fellowshij)  and  piety, 
were  chiefly  intended  to  assure  to  their  members,  as  a  bod}^  a 
prominent  share  in  the  town  government.  Here  belongs,  for 
example,  the  much  debated  magistrates'  club  ("  Richterzeche  ") 
of  Cologne,  an  association  of  the  wealthy  persons  of  the  whole 
city  which  originated  in  the  second  half  of  the  1100  s.  It  was 
composed  of  three  classes  of  members :  the  two  actual  burgo- 
masters, ex-burgomasters  ("  verdienten  "),  and  the  officials 
from  whom  that  office  was  still  to  be  filled  ("  un verdienten  ", 
"  Anwarter  ").  Their  functions  consisted  in  an  oversight  over  the 
crafts,  the  administration  of  the  municipal  police  of  trade  and 
industry,  oversight  of  the  wine  trade,  and  the  conferment  of 
rights  of  citizenship,  —  in  short,  political  privileges,  whose  op- 
pressive exercise  drew  upon  the  gild  the  hatred  of  the  artisans. 
The  public  (Cathedral)  scales  were  included  among  their  prop- 
erty.^   The  great  town  leagues,  also,  the  Ilansa  and  the  Rhen- 

^  Gierke,  "Genossenschaftrecht",  I,  438. 

*  Lrni,  "Entwinlduns  der  kommunalon  Vorfassunqr  und  Vorwaltunp  der 
Stadi  K()ln  his  zuni  Jaiiro  VVM\"  HSOS).  78  rl  stq.  Most  ropontiv,  Philippi, 
"Die  Kolncr  Richtorzeeho",  in  Inst.  iist.  (i.  F.,  XXXII  (lOU),  87-112; 
Secli{/rr,  "Zur  Pvntstchunfjsproscliichte  der  Stadt  Kr)lii.  Kritisflio  Romer- 
kunpon  im  Ansrdiluss  an  IT.  Koussons  'Topo^ifrapliie  der  Stadt  Koln* 
(1910)",  in  Westd.  Z.  (}.  K.,  XXX  (101 1),  463-505,  485  et  seq. 

138 


Ch.VP.  Ill]    JURISTIC    PERSONS   AND    OTHER   ASSOCIATIONS  [§  21 

ish  City  League,  were  of  associational  character.  The  knightage 
was  organized  in  numerous  unions  of  corporate  character.  These 
associations  of  knightly  covenanters  ("  Eidgenossenschaften  "), 
such  as  the  widespread  Order  of  the  Lion,  the  Order  of  the 
Mace  in  Swabia,  and  the  Stellmeiser  of  the  IVIark  of  Branden- 
burg, played  an  important  role,  particularly  in  the  L300  s.  While 
all  these  political  associations  possessed  only  transient  impor- 
tance and  sooner  or  later  fell  apart,  the  various  alliances, 
compacts,  and  treaties  of  peace  out  of  which  the  Swiss  "  Eid- 
genossenschaft  "  arose  developed  into  a  unitary  political  commu- 
nity ("  Gemeinwesen  ").  Finally,  the  estates  represented  in  the 
imperial  Diets,  —  usually  the  clergy,  the  nobles,  and  the  cities,  — 
were  organized  in  the  Territories  into  corporate  estates  of  the 
realm. 

Not  only  the  individual  estates  ("  Standekorpora  ")  or  "  cu- 
riae "  ("  Kurien  ").  as  such,  but  also  all  of  them  collectively  (the 
"  Landschaft  "),  possessed  such  corporate  character.  These 
corporations  were  inconsistent  with  the  conception  of  the  modern 
State :  only  in  few  Territories  were  they  able  to  withstand,  down 
into  modern  times,  the  advance  of  that  idea.  The  Empire,  in 
its  old  form,  also  recognized  political  corporations  of  the  same 
kind :  unions  {"  Vereine  ")  of  the  electoral  princes,  princes,  and 
counts  of  the  Empire ;  the  colleges,  "  curiae  ",  and  benches  of 
the  imperial  Diet ;  the  corporately  organized  imperial  knights 
of  Swabia,  Franconia,  and  the  Rhine  Province,  —  who  did  not 
enjoy  the  privileges  of  estates  of  the  Empire ;  the  corporations  of 
the  Catholic  and  Evangelical  estates  of  the  Empire;  and  the 
Circles  of  the  Empire. 

§  2L  The  Communities  "  of  Collective  Hand."  ^  (I)  The 
Medieval  Law.  (1)  Nature  of  these  Communities.  —  Besides  the 
associations  that  were  by  their  very  nature  so  organized  as  to 
confer  upon  the  entire  body  of  members,  as  such,  more  or  less 
independence  apart  from  the  individual  members,  the  medi- 
eval law  also  knew  personal  unions  which,  because  they  in- 
cluded and  were  calculated  for  only  a  relatively  limited  number 
of  members,  showed  no  such  corporal  independence.     Neverthe- 

1  Max  Huher,  "Die  Gemeinderschaften  der  Schweiz  auf  Grundlagfe  dor 
Quellen  dargestellt",  No.  54  (1897)  of  Gierke's  " Untersuehimgen " ; 
Georg  Cohn,  " Gcmeindersoliaf t  iind  Hauspfenossensohaft",  in  Z.  Vergl. 
R.  W.,  XIII  (1898),  1-128;  Dubi,  "Die  Gemeinsehaften  zur  gesamten 
Hand  im  deiitsr-hen  und  sehweizorischen  Rocht.  Ihre  Forderungs-  und 
Haftungsvorlialtnisse",  No.  40  (1910)  of  Guiiir's  "Abhandlungen" ; 
Fehr,  "Die  Reclitsstellung  der  Frau  und  der  Kinder  in  den  Weistiimern" 
(1912),  147-167. 

139 


§  21]  THE    LAW    OF    PERSONS  [BoOK   I 

less,  in  their  case  also  there  was  equally  recognized  a  sphere  of 
common  rights  distinct  from  the  spheres  of  individual  rights 
of  the  persons  interested,  and  the  holder  of  those  common  rights, 
namely  the  associated  indi\-iduals  as  a  body,  constituted  a  legal 
entity.  In  their  case  also,  therefore,  a  community  will  was  opera- 
tive within  the  union,  and  the  aggregate  membcrshii)  appeared 
to  the  world  as  an  entity  endowed  with  capacity  for  rights  and 
action.  That  this  entity,  however,  was  not  at  all  regarded  as 
something  different  from  the  members  individually,  was  shown 
in  the  fact  that  it  was  active  only  through  the  collective  action  of 
all  the  co-holders  of  the  rights  held  by  the  community.  The 
associates  ("  Genossen  ")  or  commoners  ("  Gemeinder,"  the  terra 
usual  in  this  connection)  must  clasp  hands,  and  then,  as  with 
collective  hand  ("  zu  gesamter  Hand  ",  "  communi  ",  "  com- 
municata  manu  ")  perfect  the  juristic  act.  Only  so,  in  unison, 
could  they  exercise  the  right  pertaining  to  .them  collectively. 
The  individual  could  not  in  any  way  exercise  it  alone,  not  even 
with  limitation  to  the  partial  interest  pertaining  to  him  indi- 
vidually. From  this  form  of  common  action  this  species  of 
personal  union  derived  its  name.  "  The  unitary  nature  of  action 
Jby  collective  hand  lies  in  this,  that  rights  and  duties  are  realized 
only  through  common  action,  action  by  one  without  cooperation 
of  the  others  being  impossible."  ^  It  was  not  impossible,  it  is  true, 
under  given  circumstances,  to  grant  to  one  of  the  "  commoners  " 
authority  to  act  at  the  same  time  for  the  rest.  And  therefore 
there  was  quite  possible,  in  the  case  even  of  these  personal  unions, 
a  certain  internal  organization  that  corresponded  to  the  apparent 
solidarity  which  they  presented  externally ;  they  showed  what 
we  are  accustomed  to  call  a  certain  "  corporate  "  element. 

(2)  Origin.  —  The  communities  of  collective  hand  had  their 
roots  in  the  Germanic  law  of  the  family.  Their  point  of  origin 
was  the  Indogermanic  institution  of  the  household-community 
(supra,  p.  114).  Just  as  the  family-members  united  under  the 
potestas  of  the  house-father  constituted  a  community  of  which 
he  was  the  representative,  to  which  community  belonged  the 
allotted  lands  as  the  collective  property  of  the  house,  so  among 
the  primitive  Germans  it  was  a  widespread  practice  that  the 
grown  sons,  instead  of  dividing  the  heritage  after  the  death  of 
their  father,  should  continue  to  hold  the  inherited  estate  "  in 
collective  hand  ",  that  is  in  a  common  household,  in  order, 
by  thus  living  together,  to  maintain  the  family  estate  in  as  com- 
*  Heusler,  "Institutionen",  I,  226. 
140 


Chap.  UIJ    JURISTIC    PERSONS   AND    OTHER    ASSOCIATIONS  [§  21 

pact  a  form  as  possible.  Such  greater  "  house  associations " 
("  Hausgenossenschaften  ")  or  associations  of  commoners  ("  Ge- 
meinderschaften  "),  which  might  include  even  grandchildren  or 
more  remote  descendants,  are  explicitly  attested  in  the  folk-laws  of 
the  Lombards,  Alamanians,  Bavarians,  and  Franks.  The  Saxons, 
Frisians,  and  Anglo-Saxons  knew  them,  also,  as  did  the  original 
East  Germans  (Burgundians),  and  equally  the  Scandinavians. 
The  Latin  texts  designate  the  commoners  as  "  coheredes  ", 
"  comparticipes  ",  "  consortes  "  ;  an  old  German  translation  of  a 
Carolingian  capitulary  that  is  preserved  to  us  already  uses  the 
common  medieval  expression  "  Ganerben  ",  that  is  co-heirs.^ 
These  communities  of  collective  hand  of  the  family  law  persisted 
down  to  the  end  of  the  Middle  Ages,  and  locally  down  even  to 
present  times,  —  though  of  course  not  everywhere  as  an  institute 
occurring,  as  it  once  did,  equally  throughout  all  classes  of  society, 
but  only  as  one  occurring  in  sporadic  forms. 

(3)  Specific  Types.  (A)  The  peas.int  communities  of 
COLLECTIVE  HAND.  —  Within  the  peasant  estate  communities 
of  collective  hand  were  widely  spread  throughout  the  JNIiddle 
Ages  in  South  and  West  Germany.  Though  they  have  even 
to-day  by  no  means  wholly  died  out  in  these  regions,  they  have 
nevertheless  gradually  grown  rarer,  for  the  most  part  retreating 
into  Switzerland.  The}^  played  a  great  role  there  in  the  1500  s  and 
1600  s,  as  well  in  the  Burgundian  as  in  the  Alamanian  districts. 
Even  to-day  they  are  there  still  alive  in  the  popular  consciousness. 
In  the  Zurich  Code  of  1853-55  they  were  capitally  regulated. 
The  new  Swiss  Civil  Code,  continuing  the  traditional  develop- 
ment of  the  law,  classifies  them  exhaustively  from  a  socio-political 
viewpoint.  These  peasant  communities  existed  for  the  most  part 
among  brothers  and  sisters  and  their  descendants,  but  almost 
always  among  individuals  of  equal  rights,  and  consequently 
not  among  parents  and  children.  The  last,  at  any  rate,  was 
only  exceptionally  the  case,  and  was  explicitly  excluded  in  the 
legal  systems  of  many  regions  because  inconsistent  with  parental 
powers.^  Such  communities  were  marked,  throughout,  by  the 
old  characteristics  of  the  family  law.  However,  they  did  not  origi- 
nate solely  by  force  of  statute  as  a  consequence  of  the  death 
of  the  heritor  but  might  be  also  established  by  contract.  The 
latter  was  the  case,  particularly,  with  the  very  numerous  com- 
munities that  existed  among  serfs,   especially  among  those  of 

»  M.G.,  Cap.  I,  380. 

2  Fehr,  work  just  cited,  147-149. 

141 


§  21]  THE    LAW    OF   PERSONS  [BoOK   I 

ecclesiastical  houses,  which  were  formed  for  the  purpose  of  avoid- 
ing the  necessity  of  paying  the  tribute  due  on  the  death  of  every 
serf ;  tribute  being  paid  only  on  the  death  of  the  eldest  commoner, 
who  represented  the  community.  The  commoners  or  share-holders 
("  Geteilten  ")  usually  lived  in  conununal  household,  in  joint 
profit  and  loss ;  in  the  words  of  the  sources,  they  lived  "  in  einem 
Mus  und  Brot  "  ("with  common  pap  and  bread  ").  The  com- 
munity generally  extended  to  the  entire  heritage ;  in  addition  to 
which  the  individual  members  might  of  course  possess  separate 
estates,  —  the  property  of  the  wife  a  man  took  was,  for  example, 
so  regarded.  Shares  existed  only  in  the  ideal  sense  ;  any  separate 
disposition  of  the  same  was  impossible.  Externally  the  community 
of  collective  hand  appeared,  as  of  old,  only  in  the  common  act  of 
all  its  members.  But  the  eldest  male  member  was  usually, 
nevertheless,  the  representative  of  the  community :  as  it  is 
put  in  a  doom  of  Einsiedeln,  the  eldest  brother  might  "  undertake 
to  attend  the  courts,  and  to  represent  the  other  brothers  who  re- 
main at  home  "  ("  zu  den  gerichten  gan  und  die  anndern  briider, 
so  daheimen  beliben,  versprechen  ")  ;  ^  and  so  too  the  eldest 
was  alone  liable  to  death  duties.  If  a  commoner  died,  his  chil- 
dren took  his  place  ipso  facto;  if  he  died  without  descendants, 
there  was  originally  benefit  of  survivorship  in  favor  of  the  remain- 
ing commoners,  to  the  consequent  exclusion  of  such  heirs  of  the 
decedent,  whether  equally  near  or  more  distant,  as  did  not  belong 
to  the  conmiimity.  In  some  legal  systems,  however,  such  benefit 
of  survivorship  was  in  time  weakened  in  favor  of  the  heirs.  The 
community  was  readily  dissolvable ;  in  particular,  dissolution 
could  be  demanded  in  case  of  the  loss  ("  Wegfall  ")  of  any  mem- 
bers. Indeed,  in  some  places  the  commoners  possessed  a  right, 
exercisable  at  any  time,  to  give  notice  of  withdrawal.  The  disso- 
lution of  a  community  in  consequence  of  the  coni))lete  partition 
and  consequent  satisfaction  of  the  rights  of  the  individual  com- 
moners out  of  the  family  estate  theretofore  held  in  common 
r"Tod-",  "Grund-",  "  Realteilung " ;  partition  by  death, 
real  partition),  was  known  as  "  Watschar  "  (from  "  swascara  "  — 
more  exactly  "  twas-scara  ",  "propria  portio  ").  In  later  times 
partition  was  made  more  difficult.  Partition  was  made  upon  the 
basis  of  the  relations  existent  at  the  moment  of  division  ("  ex 
nunc  "). 

(B)   Co-heir  communities   of   knights.  —  Such   institutions 

'  Grimm,    "Woistiimer",    I,    iry'2.     Cf.    Iluber,    "Solnv.    Privatrecht", 
IV,  2'iS.     Fehr,  op.  cil.,  159  el  scq. 

142 


Ch.'VP.  m]    JURISTIC    PERSONS   AND   OTHER   ASSOCIATIONS  [§  21 

were  not  kept  up,  nor  did  they  originate,  independently,  in  the 
burgher  classes.  Crafts  and  other  associations  in  the  cities  were 
evidently  so  numerous  that  the  need  of  communities  of  collective 
hand  could  not  there  be  felt ;  and  besides,  it  was  in  the  cities 
that  the  community  forms  of  the  commercial  law  (hereafter  referred 
to)  later  found  their  widest  distribution.  But  among  the  knight- 
age the  co-heir  communities  played  an  important  role.  They  too 
preserved  the  principle  of  the  old  family  community,  although 
in  somewhat  different  manner  than  did  the  peasant  communities 
of  collective  hand.  Of  these  last,  as  already  remarked,  a  com- 
munal household  continued  to  be,  under  all  normal  circumstances, 
the  necessary  foundation ;  for  a  vital  consciousness  of  family 
solidarity  could  not  survive,  in  them,  a  "  real  "  partition.  On 
the  other  hand,  the  feeling  of  solidarity  and  the  regard  for 
family  fame  was  stronger  in  the  exclusive  classes  of  the  upper 
and  lower  nobility.  In  these,  therefore,  men  did  not  shrink  from 
divisions  of  the  common  household,  notwithstanding  such  divi- 
sion could  be  carried  through  only  with  inconvenience  to  knights 
who  were  accustomed  to  rather  pretentious  needs.  When,  as  was 
frequently  the  case,  the  partition  was  merely  one  of  usufructs,  not 
affecting  the  preservation  of  the  substance  ("  Mutschierung  ", 
"Orterung",  as  contrasted  with  "  Watschar  "),  solidarity  was 
easily  preserved.  Equally  so  wherever  the  castle-garth  afforded 
sufficient  room  to  assign  to  the  individual  co-heirs  their  own 
buildings,  farms,  and  towers.  Burg  Eltz  in  the  INIoselle  valley 
and  the  Schwarzburg  in  Thuringia  are  examples  of  such 
"  Ganerben  "  castles.^  But  even  where  a  partition  of  substance 
was  made,  the  principle  of  "  collective  hand  "  was  preserved  in 
the  co-heir  community.  Notably  in  the  so-called  "  castle- 
peaces  "  ("  Burgfrieden ")  or  "  family  unions  "  ("  Stammve- 
reine  "),  —  compacts  by  which  relations  of  co-heirship  could  be 
established  among  non-kindred,  and  in  which  we  see  the  proto- 
types of  the  later  "  fideikommissum  "  settlements,'-  —  it  was 
customary  expressly  to  regulate  inheritance  by  the  principle  of 
collective  hand  ;  so  that  in  the  absence  of  near  kindred  the  share 
of  a  decedent  passed  to  the  other  co-heirs  by  survivorship. 
Further,  the  shares  were  inalienable,  or  alienable  only  to  a 
limited  extent ;  a  partition  could  be  had  only  with  the  consent 
of  all.  Consequently  such  relations,  when  protected,  persisted 
for  long  periods,  and  might  assume  a  corporate  character,  as  in 

1  Piper,  "Biirgeiikiin(l(>"  (3d  ed.,  1912),  571  et  seq. 

2  Brunner,  "Gruiidziige"  (otli  ed.),  242. 

143 


§  21]  THE  LAW  OF  PERSONS  [Book  I 

the  case  of  the  so-called  "  castle  communities  "  ("  Burggemein- 
wesen  "),  which  outlived  centuries.  Moreover  such  collective 
relationships  were  not  based  solely  upon  contractual  unions,  but 
very  often  upon  collective  feoffments. 

(C)  Herital  fraternities.  —  It  was  chiefly  among  the 
nobles  of  the  knightly  class,  especially  the  class  of  imperial  knights, 
that  co-heir  communities  were  a  favored  type  of  the  com- 
munity of  collective  hand.  Among  the  high  nobility  there  were 
formed  for  the  same  ends  from  the  1300  s  onward  so-called  "  heri- 
tal fraternities  "  ("  Erbverbriiderungen  "),  in  which  the  prin- 
ciple of  collective  hand  found  similar  embodiment,  although 
in  a  still  weaker  form.  These  involved  a  purely  formal  union : 
the  different  houses  associated  in  the  fraternity  acknowledged 
mutually  the  use  of  the  coats  of  arms  and  titles  of  their  various 
seigniories,  arranged  mutual  recognition  tributes,  and  doubtless 
each  accepted  homage  from  the  subjects  of  all.  But  the  gov- 
ernment of  their  domains  remained  entirely  separate.  At  the 
same  time  the  principle  of  collective  hand  was  evidenced  in 
the  fact  that  dispositions  relative  to  territories  received  into 
the  fraternity  could  be  made  only  with  collective  hand ;  and 
that  on  the  extinction  of  one  of  the  fraternal  houses  its  possessions 
escheated  to  the  other  members  of  the  fraternity.  Examples  of 
such  herital  fraternities  are  the  Saxon-Hessian  "  Erbverbriider- 
ung  "  of  1373,  to  which  Brandenburg  acceded  in  1457,  and  which 
was  last  renewed  in  1614;  and  the  Wittstock  Compact  of  1442, 
renewed  in  1752,  which  gave  Brandenburg  rights  of  succession 
—  not   mutual  —  in   iMecklenburg. 

(D)  Unions  under  public  and  international  law. — 
These  "  Erbverbriiderungen  "  were  predominantly  political  in 
character,  and  this  was  true  in  still  more  pronounced  degree  of 
many  unions  under  public  and  international  law.  At  the  same 
time,  these  are  only  very  loosely  connected  with  the  communities 
of  collective  hand.  Here  may  be  included  the  real  unions  of 
international  law ;  further,  joint  governments,  common  baili- 
wicks, joint  rights  of  judicature  and  of  advowson,  as  well  as  the 
common  seigniories  of  the  old  Swiss  Confederation  of  the  Thirteen 
Places. 

(E)  The  marital  community  of  collective  hand.  — 
Finally,  a  form  of  community  of  collective  hand  that  appears 
in  all  Germanic  lands  and  in  all  classes  of  society,  was  the  marital 
conmiunity  of  collcctivo  hand  ("  Ehelichc  Gesamthand  "),  which 
controlled  the  legal  relation  of  husband  and  wife  wherever  the 

144 


Ch.\P.  Ill]    JURISTIC    PERSONS   AND    OTHER    ASSOCIATIONS  [§  21 

idea  of  the  husband's  guardianship  was  supplemented  in  the  field 
of  property  law  by  the  idea  of  the  "  Genossenschaft ",  and 
the  law  of  marital  community  of  property  built  up  upon  that 
double  basis.  The  community  of  collective  hand  between  the 
spouses  was  often  extended  to  the  recognition  of  a  community 
of  goods  betw^een  the  surviving  spouse  and  children.  (As  to 
this  see  details  below  under  Family  Law.) 

(II)  The  Modem  Development.  —  Personal  unions  of  collective 
hand  either  remained  or  became  of  great  importance  for 
modern  German  law,  and  even  for  the  law  of  to-day.  It  is 
indeed  true,  as  already  remarked,  that  the  peasant  communi- 
ties of  collective  hand  have  disappeared  in  Germany  save  for 
scanty  vestiges :  the  co-heir  communities  of  knights  have  wholly 
disappeared,  and  the  herital  fraternities  have  been  completely 
divested  of  their  slight  content  of  private  law.  On  the  other 
hand  the  marital  community  and  the  "  continued  "  marital  com- 
munity of  goods  have  persisted  in  various  legal  systems.  Some, 
as  e.g.  the  Prussian  "  Landrecht  ",  regulated  the  herital  com- 
munities ("  Erbengemeinschaften  ")  as  commimities  of  collective 
hand.  Others,  as  e.g.  here  again  the  Prussian  "  Landrecht  ", 
gave  effect  to  the  same  principle  —  either  unconsciously  or  under 
the  influence  of  conceptions  of  the  Law  of  Nature  —  in  regulat- 
ing the  general  law  of  societies  or  partnerships  ("  Gesellschafts- 
recht  ").  But  it  was  of  still  greater  importance  that  the  prin- 
ciple remained  (or  again  became)  dominant  in  commercial  law. 
Beyond  a  reference  to  the  literature  ^  of  that  subject  it  need  here 
be  only  briefly  remarked  that  not  only  the  commandite  partner- 
ship, and  in  peculiar  degree  the  ship  partnership  ("  Reederei  "), 
but  above  all  that  particular  form  of  mercantile  partnership 
which  is  recognized  in  our  law  to-day  as  the  typical  form,  namely 
the  mercantile  partnership  of  unlimited  liability,  are  based  upon 
the  principle  of  collective  hand.  The  question  may  be  left  un- 
answered whether  the  unlimited  partnership  goes  back  in  origin 
—  as  many  reasons  indicate  to  be  at  least  probable  —  to  co-heir 
communities  of  collective  hand  in  which  the  sons  of  a  merchant 
continued  the  business  of  their  father.  Equally  without  discus- 
sion must  the  question  (variously  answered)  remain,  whether  in 
medieval  Germany,  and  especially  in  the  world  of  trade  dominated 

iSee:  K.  Lekmann,  "Lehrbueh  des  Handelsrechts"  (2d  ed.,  1912), 
280  et  sea.;  Hacmann,  "Beitrag  zur  EnUvicklung  der  offenen  Handels- 
gesellschaft",  in  Z.  ges.  H.  R.,  LXVIII  (3d  ser.  IX,  1910),  439-482;  LXIX 
(3d  ser.  X,  1911),  47-92. 

145 


§  21]  THE    LAW    OF    PERSONS  [BoOK    I 

by  the  Hansa,  the  uiiHmited  partnership  had  ah'eady  been  adopted 
to  any  considerable  extent  before  contact  with  the  law  of  Southern 
and  Western  Europe.^  At  all  events,  the  Germanic  principles  of 
collective  hand  were  adopted  in  the  Italian  and  French  legisla- 
tion of  the  1500  s  and  KKK)  s,  which  regulated  the  unlimited  part- 
nership in  a  sense  which,  especially  in  France,  was  decisi\-e  of 
its  later  development.  They  were  thence  brought  back,  through 
the  okl  Commercial  Code,  to  Germany,  thereby  acquiring  impor- 
tance as  models  for  the  law  of  the  present  Civil  Code  (below, 
§  25). 

Topic  2  —  Practical  and  Theoretical  Results  of  German 
Legal  Development 

§  22.  General  Principles  of  the  German  Law  of  Associations. — 
If  one  takes  a  general  view  of  the  legal  ideas  that  have  controlled 
the  de\elopment  of  associational  organization  in  German  law, 
one  notes  first  of  all  a  contrast,  which  was  present  from  the 
beginning,  between  associations  proper  ("  Genossenschaften  "), 
which  included  a  great  number  of  members,  and  communities 
dominated  by  the  principle  of  the  collective  hand  ("  Gemeinder- 
schaften  "),  whose  organization  was  adapted  to  a  smaller  number 
of  participants. 

(I)  Associations  proper  and  Corporate  Associations.  (1)  .isso- 
ciation.s.  —  These  unions,  which  were  ordinarily  relatively  large, 
went  through  an  evolution  that  gradually  brought  to  full  devel- 
opment certain  nuclear  principles  Avhich,  though  already  present 
in  them  from  the  beginning,  were  at  first  undeveloped.  In  the 
oldest  form  of  such  unions  that  can  be  denominated  associations 
in  the  strict  sense  ("Genossenschaften"),  —  namely  in  the  sib, 
and  especially  in  the  mark-associations  of  the  early  IMiddle 
Ages,  —  there  was,  indeed,  already  recognized  a  certain  inde- 
pendence of  the  entire  body,  as  distinguished  from  its  members ; 
but  it  was  one  of  which  contemjjoraries  were  as  yet  .scarcely 
conscious.  It  gradually  became  manifest,  however,  and  with 
increasing  definiteness.  It  found  clearest  expression  in  those 
localities  where  the  commune  appeared,  in  contrast  with  its 
members   and    their    sej)arate    economic    interests,    as   a   group 

'  Keulgen,  "Hansische  Handelsgesellsehaften,  vornchmlicii  dcs  14. 
Jahrhundorts",  in  Vj.  Soz.  W.  G.,  IV  (19()()).  27S  ct  .srg.,  4(j()  cl  siq.,  .')()7 
et  srq.;  K.  Lchmann,  "Ilansischo  IlandclsfjcscUschafton",  in  same,  VIII 
(1910),  128-i:^().  Slcin,  "Zur  CJcschichtc  altcror  Kaufraannsgenossen- 
schaften",  in  Hans.  G.  B.,  XVI  (1910),  .571-591. 

146 


Ch.\P.  Ill]    JURISTIC    PERSONS   AND    OTHER   ASSOCIATIONS  [§  22 

impelled  by  its  own  political  purposes.  This  was  earliest 
true  of  the  urban  communes.  But  the  rural  communes  followed 
the  same  development,  and  likewise  the  purely  economic  unions  ; 
and  this  was  true  of  these  last  alike  when  they  had  existed  inde- 
pendently from  the  beginning  beside  the  village  commune  as  a 
complex  of  mark-associations,  and  when  they  were  only  gradually 
differentiated,  in  varied  forms,  from  the  political  communes. 

(2)  Corporate  Associations.  —  Wherever  such  a  process  of 
differentiation  took  place,  and  a  group-entity  as  such  made  its 
appearance  in  legal  life  as  the  locus  of  an  independently  active 
will,  the  "  Genossenschaft  "  (association)  had  developed  into  a 
"  Korperschaft  "  (corporate  association).  It  was  characteristic 
of  such  corporate  associations  of  Germanic  law  that  the  group 
("  Verband  ")  was  on  one  hand  regarded  as  an  independent 
entity  endowed  with  its  own  legal  personality,  —  a  collective 
person  composed  of  the  physical  persons  of  the  associates,  and 
possessing  a  collective  will,  which  was  formed  through  the  formal 
fusion  of  all  individual  wills;  but,  on  the  other  hand,  the  ab- 
straction which  men  already  needed  for  the  mere  conception  of 
a  collective  personality  unembodied  in  a  definite  physical  being, 
was  not  carried  so  far  in  medieval  law  that  men  would  have 
recognized  in  this  entity  to  which  independence  was  so  far 
attributed,  a  subject  of  rights  wholly  distinct  from  the  individual 
associates,  and  into  legal  relations  with  which  the  associates 
could  have  entered  only  as  with  a  wholly  alien  person.  There- 
fore, and  in  particular,  the  usufructuary  rights  of  the  associates 
in  the  property  belonging  to  the  group  were  not  regarded  as 
rights  in  the  property  of  another.  On  the  contrary  all  possible 
rights  in  the  association  property  appeared  as  apportioned  be- 
tween the  group  and  the  individuals,  and  this  in  such  manner 
that  the  right  of  disposing  thereof  inhered  essentially  in  the 
whole  body,  but  the  rights  of  usufruct  therein  inhered  in  the 
individuals.  This  view  reflected  the  peculiarity  of  the  German 
concept  of  ownership.  A  corporate  collective  personality  behind 
which  the  plurality  of  associates  is  in  no  way  hidden,  found  its 
counterpart  in  the  law  of  things  in  a  corporate  collective  property 
(infra,  §  33). 

As  collective  personalities,  an  organization  was  essential  to  the 
corporate  associations ;  but  no  other  or  greater  organization  than 
the  older  associations  already  possessed.  In  this  way  it  became 
possible  to  conceive  of  a  unitary  will,  although  in  the  constitution 
of  this  the  majority  principle,  by  which  the  greater  body  of  i)er- 

147 


§  22]  THE    LAW   OF   PERSONS  [BoOK   I 

sons  was  enabled  to  bind  the  lesser,  did  not  find  absohite  recogni- 
tion until  a  late  day.^  The  corporate  organs,  through  which  it 
exercised  its  autonomy  in  enactments,  judicature,  and  adminis- 
tration, were  everywhere  the  general  assembly  of  members  and  a 
directorate  consisting  of  one  or  several  j)ersons.  The  directorate 
represented  the  "  Korperschaft  "  (the  corporation  of  Germanic 
law)  in  its  external  relations;  but  it  sometimes  happened  that 
in  certain  cases  special  representatives  were  named,  as  for 
example  in  lawsuits.  Here  again,  however,  the  old  view  long 
made  itself  felt  that  the  group,  that  is  all  the  members  to- 
gether, must  ap})ear  before  the  court,  in  order  to  bring  complaint, 
be  impleaded,  take  oath,  and  so  on  ;  and  special  privileges  were 
besought  and  granted  by  which  representation  by  a  few  members 
was  recognized  as  sufficient.  So,  for  exam])le,  in  a  lawsuit  which 
the  city  of  Gottingen  prosecuted  in  1383,  278  burghers  were 
obliged  to  appear  before  the  Territorial  Court ;  only  in  1385  was 
it  provided  by  charter  that  two  councilmen  and  four  or  five 
worthy  burghers  should  thenceforth  act  as  representatives  of  the 
city.  In  1443  the  town  of  Lauingen  was  similarly  summoned 
before  the  Verne  in  the  j)erson  of  her  88  burghers  above  20  years 
of  age. 

In  consequence  of  the  legal  personality  of  the  corporation 
it  was  regarded  as  capable  of  holding  property,  and  therefore 
also  as  possessing  capacity  to  inherit.  All  the  varieties  of  medieval 
corporations  that  have  been  discussed,  and  equally  the  still  older 
types  of  association,  were  owners  alike  of  immoveable  and  of 
moveable  property :  commonties,  herds,  agricultural  and  indus- 
trial implements,  buildings  in  town  and  country,  food  supplies, 
stocks  of  goods,  capital  funds,  etc.  And  they  might  equally 
well  possess,  as  corporations,  real  rights  of  all  kinds,  and  obliga- 
tional  claims. 

From  the  corporation's  capacity  for  rights  and  action  the  medie- 
val law  logically  deduced  the  rule  that  it  might  also  commit 
torts ;  in  other  words,  it  had  delictual  capacity.  But  here  again 
the  characteristic  regard  shown  at  once  for  the  group  and  for  the 
individuals  composing  it,  found  clear  expression.  For  the  conse- 
quences of  a  violation  of  law  coinmitted  by  a  corporation,  — e.g. 
the  i)ronounccment  of  an  unjust  doom,  the  choice  of  an  inefficient 
official,  the  breaking  of  a  contract,  the  punishment  of  alien  sub- 
jects contrary  to  law,  etc.  —  might  fall  either  upon  the  corporation 
as  such  or  upon  the  individual  associates,  and  either  in  the  form 
1  CJ.  the  Ssp.,  II,  55.  •  .. 
148 


Chap.  Ill]    JURISTIC    PERSONS   AND    OTHER   ASSOCIATIONS  [§  22 

of  an  obligation  to  give  damages  or  as  a  penalty.  It  was  not 
rarely  the  case,  in  the  medieval  period,  that  villages,  cities,  com- 
munes, whole  countries,  as  well  as  other  corporations,  were  pro- 
scribed by  vehmic  right,  outlawed,  or  excommunicated  ;  that  their 
corporate  property  was  confiscated,  and  their  corporate  rights 
taken  away.  And  such  punishments  —  as  outlawry,  ban,  pro- 
scription, razure  of  the  town  —  came  home  to  every  individual 
in  a  very  near. way.  But  aside  from  that,  when  the  city  was  bound 
to  pay  damages  execution  was  possible,  in  case  of  necessity, 
against  the  persons  and  private  property  of  all  the  burghers. 
That  is,  although  men  found  it  possible  to  distinguish  be- 
tween city  or  village  and  the  citizens  or  villagers,  and  to  con- 
ceive of  the  council  or  local  governing  authority  as  an  organ  of 
the  commune,  nevertheless,  in  cases  of  obligations  of  the  commune 
under  the  property  law,  not  only  the  communal  property  but 
also  all  the  commune  members,  or  at  least  the  councilors,  were 
regarded  as  liable.  Not  infrequently,  in  the  establishment  of 
city  schools,  the  council  expressly  made  the  individual  burghers 
co-obligors.  Conversely,  the  whole  association  was  originally 
liable  for  the  delinquencies  and  contractual  obligations  of  the 
individual  associates ;  though  this  view,  it  is  true,  was  more  and 
more  abandoned,  speaking  generally,  even  in  the  Middle  Ages. 
At  least  the  cities  thenceforth  admitted  their  liability  for  the 
contractual  obligations  and  delictual  liabilities  of  their  burghers 
only  when  the  city  denied  the  creditors  of  these  a  legal  hearing, 
or  otherwise  protected  the  wrongdoers,  thereby  making  their 
debt  its  own.^ 

Most  of  the  corporations  of  the  Middle  Ages  originated  as  a 
product  of  customary  law.  Mark-associations  and  communes 
existed  from  the  earliest  times,  and  gradually  assumed  associa- 
tional  and  corporate  character  quite  in  the  natural  course  of 
development.  Other  corporations,  however,  originated  in  con- 
sciously creative  acts.  Such  acts  often  proceeded  from  the  State 
or  from  the  local  superior  authority ;  manorial  lords  formed  ma- 
norial communes  and  mark-associations  ;  kings  and  princes  estab- 
lished cities  or  conferred  the  privileges  of  town-law  upon  older 
settlements ;  city  lords  called  craft  companies  into  being  and 
consented  to  their  conversion  into  gilds ;  and  so  on.  IMany 
other  associations,  however,  owed  their  existence  to  voluntary 
union,  that  is,  to  an  establishment  by  virtue  of  compact,  as  was 
true  of  the  protective  gilds  and  brotherhoods,  —  and  indeed  the 
1  Gierke,  "  Genossenschaftsrecht  ",  II,  772. 
149 


§  22]  THE    LAW    OF    PERSONS  fBoOK   I 

impulse  of  voluntary  union  was  essential  to  the  craft  gilds.  As 
these  varied  modes  of  origin  show,  the  Middle  Ages  knew  no 
general,  invariant  legal  rules  that  applied  in  all  cases  to  the 
process  by  which  associations  and  corporations  were  formed. 
As  a  matter  of  fact  the  principle  of  voluntary  corporate  organiza- 
tion was  of  wide  prevalence.  It  is  true  that  the  local  authorities 
claimed  the  right  to  dissolve  personal  unions  that  appeared  to 
them  dangerous,  and  that  general  prohibitions  of  gilds  and  frater- 
nities were  consequently  rej)eate(lly  resorted  to  from  the  Carolin- 
gian  period  onward  for  political  reasons,  although  without  last- 
ing effect.  But  at  all  events  the  view  was  unknown  that  an 
existing  personal  union,  recognized  as  such,  needed  any  special 
act  of  the  State  as  a  prerequisite  to  the  acquisition  of  legal  per- 
sonality. On  the  contrary  this  was  inherent  in  all  corporate,  and 
in  lesser  degree  in  all  other,  associations. 

(II)  The  Conamunities  of  Collective  Hand.  —  The  "  Gemeinder- 
schaften  ",  unlike  associations  proper  ("  Genossenschaften  "), 
originated  in  the  house  community,  and  not  in  the  sib,  and  they 
continued  to  the  end  without  independent  legal  personality.  The 
principle  of  collective  hand  by  which  they  were  controlled  al- 
ways remained  distinct  from  the  associational  and  corporate 
bond.  It  is  true,  however,  that  this  contrast  first  appeared  in 
full  clarity  when  the  corporate  association  had  everywhere  been 
developed  out  of  the  older  and  looser  association.  Thenceforth, 
the  community  of  collective  hand  could  be  contrasted,  as  a  type 
of  union  lacking  legal  personality,  with  the  corporation  as  a 
personal  union  endowed  with  individual  legal  personality.  But 
despite  this  fundamental  and  principal  unlikeness,  there  was  no 
sharp  division  between  the  two  types  in  actual  life,  so  that  under 
some  circumstances  the  one  might  pass  over  into  the  other,  — 
as  was  the  case,  for  example,  with  many  co-heir  communities  of 
knights  that  gradually  acquired  a  corporate  character  {supra, 
p.  143).  The  reason  for  this  fact,  peculiar  to  medieval  law 
and  sprhiging  from  its  scant  liking  for  clean-cut  and  exclusive 
formulas,  lay  in  the  following  qualities  (already  mentioned)  of 
those  two  varieties  of  personal  unions.  The  corporate  associa- 
tion involved  as  little  as  the  association  proper  a  complete  absorp- 
tion of  the  individual  associate  in  the  entity  of  the  union  :  on  the 
contrary  the  right  of  the  whole  was  restricted  by  the  individual 
rights  of  the  associates.  There  resulted  from  this,  despite  the  rec- 
ognition of  the  totality  as  an  independent  legaJ  personality,  an  ap- 
proach to  the  principle  of  collective  liaiid,  to  which  was  essential 

150 


Ch.\P.  Ill]    JURISTIC    PERSONS   AND   OTHER   ASSOCIATIONS  [§  23 

an  exclusive  regard  for  the  individual  commoners  and  the  absence 
of  any  fully  developed  entity  embracing  them.  On  the  other 
hand,  in  the  case  also  of  the  community  of  collective  hand,  al- 
though this  remained  a  mere  legal  relation  among  several  in- 
dividuals, it  was  nevertheless  possible  to  unite  these  participants 
into  a  group  recognized  by  the  law  of  persons  and  to  bind  their 
separate  wills  "  associationally."  For  the  principle  of  collective 
hand  merely  signified  that  the  united  commoners  were  the  holders 
of  the  collective  right ;  that  no  one  of  them  possessed  even  a  dis- 
tributive power  of  disposition,  in  proportion  to  his  share,  over 
the  community  property.  In  that  respect,  however,  the  com- 
munity of  collective  hand  approximated  a  corporate  organization, 
although  without  passing  over  into  it.  Moreover,  a  certain  organ- 
ization, and  notably  the  conferment  upon  one  of  the  commoners 
of  representative  power,  was  also  by  no  means  impossible  in  its 
case. 

In  these  forms  of  association,  corporate  association,  and 
community  of  collective  hand,  the  medieval  law  had  devised  a 
regulation  of  associational  unions  which  was  closely  adjusted 
to  the  rich  expression  of  the  social  life  of  the  time,  and  excellently 
adapted  to  its  needs,  and  one  which  rested  throughout  upon 
sound  and  simple  conceptions.  Undoubtedly  it  was  susceptible 
of  further  development,  and  would  have  presented  no  difficulties 
to  a  thorough  scientific  elaboration  and  systematic  treatment. 
But  the  reception  of  the  alien  law  made  all  that  impossible. 

§  23.  The  Reception  of  the  Alien  Law  and  the  Renascence 
of  Germanic  Law  in  Theory  and  Practice.  (I)  The  Corporation 
Theory  of  the  AUen  Law.  —  With  the  Reception  the  romanistic 
corporation  theory,  as  it  had  been  constructed  in  medieval  Italy 
upon  the  basis  of  the  rather  barren  Roman  sources  by  the  Civil- 
ians, Glossators,  Post-Glossators,  and  Canonists,  —  an  elaborate 
structure  of  ideas  influenced  in  many  parts  by  Germanic  legal 
conceptions,  —  attained  a  dominance  at  first  unlimited.  Un- 
fortunately, the  Roman-scliooled  jurists  of  Germany  lackctl  un- 
derstanding for  the  Germanic  elements  of  that  theory,  and  the 
native  law  was  in  danger  of  dying  in  the  bonds  of  alien  legal  con- 
cepts. For  the  fundamental  concepts  of  the  alien  law  were 
diametrically  opposed  to  those  of  the  Germanic  law.  Its  dis- 
tinction between  juristic  persons  and  other  forms  of  personal 
unions,  as  well  as  its  classification  of  juristic  persons,  contradicted 
theretofore  familiar  conditions  and  conceptions. 

(1)  "  Universitas"  ami  "  Societas."  —  The  Roman-Itahan  law 

151 


§  23]  THE    LAW    OF    PERSONS  [BooK  I 

arranged  personal  unions  under  two  categories  that  were  in  the 
sharpest  contrast,  notionally,  with  each  other :  ^  that  of  the  "  uni- 
versitas"  and  that  of  the  "societas." 

(A)  The  "uNiVERSiTAs",  or  corporation  in  the  narrow  sense, 
("  Korporation  ")  is  a  collective  person,  or  group  entity,  endowed 
with  legal  personality.  It  is  entirely  independent  of,  and  is 
sharply  distinguished  from,  the  members  of  the  corporation. 
The  property  of  the  corporation  is  not  the  property  of  the  corpora- 
tion members  ;  these  can  have  rights  in  it  only  as  in  an  alien  thing  ; 
but  no  distributive  or  share  rights  therein  based  upon  such  mem- 
bership. The  claims  and  obligations  of  the  corporation  are  not 
claims  and  debts  of  its  members.^  In  a  law  suit  the  corporation 
is  an  independent  litigant  party ;  its  members  are  not  parties. 
Acts  of  the  members  neither  give  rights  to  nor  impose  obligations 
upon  the  corporation  as  such,  unless  when  those  members  are 
formally  empowered  to  act  as  its  representatives.  The  corpora- 
tion is  organized  for  all  time ;  a  change  in  the  content  of  its  mem- 
bership has  no  eflfect  upon  the  existence  of  the  corporation.  In 
Roman  law,  the  Roman  State  and,  particularly,  the  commune  were 
regarded  as  such  "universitates."  Private  societies  ("Vereine"), 
though  many  such  existed,  played  only  a  subordinate  role. 

(B)  Unlike  the  "universitas",  the  "societas"  or  partner- 
ship ("  Gesellschaft ")  was  no  subject  of  rights,  but  merely  a 
legal  relation  between  the  partners.  The  partnership  is  there- 
fore, as  such,  without  capacity  either  for  rights  or  action,  and 
consequently  is  incapable  of  holding  property.  There  is  there- 
fore no  partnership  property  that  can  be  distinguished  in  any 
manner  from  the  private  property  of  the  partners.  If  the  part- 
ners accumulate  property  through  contributions  or  otherwise, 
it  belongs  in  shares,  distributively,  to  the  individual  partners. 
Each  partner  can  at  any  time  require  the  dissolution  of  the  part- 
nership relation,  and  has  a  claim,  then,  to  his  share  as  a  partner. 
The  partnership  is  a  legal  relation  that  exists  exclusively  between 

'  For  the  contrary  view  see  Milteis,  "Romisehes  Privatreebt  bis  auf 
die  Zeit  Diokletians",  I  (190S),  342-347.  He  attempts  to  establish  the 
existence  in  the  Roman  "universitas"  of  traces  of  the  associational  idea, 
declaring  it  possible  "that  the  inflexible  corporation  concept  of  the  classical 
period  was  merely  the  result  of  a  long  evolutional  process  whicii  may 
perhaps  have  started  with  a  grouiwoncept  quite  as  full  of  germinal 
vitality  as  that  of  the  Germanic  law." 

2  According  to  Mittcis,  op.  cil.,  34."),  this  principle,  ascribed  by  dom- 
inant legal  theory  to  the  Roman  law,  is  also  not  in  point:  " lOxpressions 
such  as  'quod  universitati  debetur  singulis  non  debetur'  express  merely 
the  formal  unity  of  corporations  in  relations  with  third  parties,  and  leave 
quite  untouched  the  question  as  to  the  nature  of  the  internal  bond." 

152 


Chap.  Ill]    JURISTIC    PERSONS   AND    OTHER   ASSOCIATIONS  [§  23 

the  persons  who  join  in  the  partnership  contract ;  every  change 
in  the  membership  theoretically  dissolves  the  partnership.  More- 
over, the  Roman  "societas"  exacted  of  the  individual  not  even 
the  slightest  sacrifice  of  his  existence  as  a  separate  personality .^ 
(2)  Nature  and  Species  of  Juristic  Persons.  —  Under  the  influ- 
ence of  Christianity,  the  later  Roman  law  came  to  recognize  as 
corporations,  besides  group-persons  ("universitates  personarum  "), 
so-called  "  universitates  bonorum."  That  is  to  say,  it  assumed 
that  property  segregated  by  juristic  acts  inter  vivos  or  mortis 
causa,  and  dedicated  as  an  "  endowment  "  ("  Stiftung  ")  to  a 
pious  or  charitable  purpose  {"  pia  causa  ",  "  pium  corpus  "), 
could  itself  be  an  independent  holder  of  rights  and  duties.  But 
it  was  not  from  the  scanty  rules  of  the  Roman  law  that  the  Canon 
law  developed  the  doctrine,  —  dominant  in  medieval  and  in 
modern  times,  —  of  the  "foundation"  ("Anstalt")  and  the 
endo\^^nent  as  independent  legal  personalities.  The  conception 
of  the  "foundation"  as  an  immortal  person,  endowed  with  special 
property,  created  for  special  ends,  and  subjected  to  an  external 
will,  found  a  prototype  in  the  ecclesiastical  theory  of  the  church, 
which  men  conceived  of  as  an  establishment  ordained  of  God, 
organized  from  above,  and  endowed  as  an  independent  holder  of 
rights.  The  legal  concepts  of  foundation  and  endo^\^nent  passed, 
however,  from  the  Canon  into  the  German  law.  The  latter  had 
developed  in  the  localized  property  of  the  proprietary  church, 
or  in  certain  parts  thereof — namely  the  benefice,  the  church 
lights,  and  the  church-buildings  ("  Fabrikvermogen  ") — a  peculiar 
ecclesiastical  tj-pe  of  a  special  estate  ("  Sondervermogen,"  §  27 
infra).  And  though  the  statutes  of  the  Church  relating  to 
advowsons  later  swept  away  the  element  of  owaiership  which 
was  the  basis  of  this,  they  nevertheless  recognized  this  special 
estate  as  an  independent  endowment.  "  It  was  not  out  of  the 
endowment  of  the  old  Roman  law,  with  which  connections  had 
for  centuries  been  broken,  but  from  Germanic  roots,  that  the 
personality  of  the  foundations  and  endowments  of  the  ecclesiastical 
law  directly  grew,  —  and  mediately,  the  foundations  and  en- 
dowments of  the  private  law.  But  of  course  this  development 
was  furthered  by  the  revival  of  legal  science."  ^     Finally,  as  re- 

1  Gierke,  "Genossenscliaftsrecht",  III,  41. 

2  Stutz,  art.  "Kirehem-eeht",  in  ;;.  IIohcndorff-Kohler,  "Eneyklopadie", 
(6th  ed.  1903),  II,  8()f>-972,  860,  and  "Das  Eigeukirchenvermoffen,  Em 
Beitrag  zur  Geschichte  des  deutsehen  Saehenrechtes  auf  Grund  dor  Frei- 
singer  Traditionen",  in  the  "Festgabe  O.  Gierke  dargebraeht"  (1911), 
1187-1268,  1263  et  seq.,  especially  1267  et  seq. 

153 


§  23]  THE    LAW    OF    PERSONS  [BoOK    I 

gards  the  nature  of  the  juristic  person  or  corporation,  the  fiction- 
theory,  only  suggested  in  the  Uonian  sources,  attained  complete 
elaboration  and  undisputed  dominance.  Men  were  agreed  that 
the  "  universitas  "  was,  indeed,  a  person  ;  Init  equally  that  its 
personality  rested  on  a  legal  fiction,  that  it  was  an  insensible  and 
invisible  tiling  without  body  or  soul,  cognizable  by  reason  only. 
True,  men  remained  uncertain  as  to  the  relation  between  con- 
ception of  this  "  persona  ficta  "  and  that  of  the  aggregate  of 
individuals.  The  idea  appeared  that  an  artificial  holder  of  rights 
had  been  created  out  of  nothing.  This  idea  was  opposed  to  the 
other  and  more  Germanic  idea,  according  to  which  the  fiction 
consisted  only  in  regarding  the  aggregate  of  individuals  as  a 
personal  entity  separate  from  the  members. 

(II)  The  Reception  of  the  Alien  Doctrines.  —  After  attempts 
had  been  made  from  the  1300  s  onward  to  interpret  the  German 
law  of  associations  in  terms  of  the  doctrine  of  the  alien  law,  this 
was  finally  adopted  by  German  jurisprudence  at  the  beginning 
of  the  1500  s.  In  this  movement  the  Imperial  Chamber  of  Jus- 
tice took  the  lead,  and  the  judicial-opinions  of  the  university 
law  faculties,  and  the  counsel-practice  of  individual  scholars 
powerfully  cooperated.  Legislation  next  passed  under  the  same 
influence.  But  at  first,  of  course,  the  influence  of  native  condi- 
tions and  ideas  continued  to  be  felt  at  many  points,  and  even 
in  the  final  elaboration  of  the  common  law  they  retained  a  not 
unimportant  influence. 

In  particular,  the  conception  of  the  foundation  was  now  for 
the  first  time  put  forward  in  contrast  to  the  Roman  concept  of 
the  corporation  ("  Korporation  ").  And  it  was  just  here  that 
connection  could  be  made  with  old  Germanic  conditions.  For 
the  German  law  too,  as  above  pointed  out  (p.  121),  had  known 
from  the  earliest  times  relations  of  power  and  dependence  in  which 
a  mass  of  dependent  persons  were  united  about  a  lord  who  was 
their  common  superior.  Above  all,  the  gro^^'th  of  national 
sovereignty  and  of  the  modern  State  that  sprang  therefrom,  be- 
came of  decisive  importance.  Men  came  to  regard  the  na- 
tional sovereign,  as  such,  —  the  ideal  entity,  outliving  changes 
of  dynasties  and  time,  of  a  governing  group  ("  obrigkcitlichcr 
Verband  ")  ruling  over  a  particular  country  and  attached  to 
a  particular  ruling  house,  —  as  the  bearer  of  supreme  govern- 
mental rights  and  duties;  as  an  invisible  person,  although,  in- 
deed, without  other  physical  embodiment  than  the  person  of 
the  Territorial  ruler,  and    therefore  identified   with  him,  or  at 

154 


Chap.  Ill]    JURISTIC   PERSONS   AND   OTHER   ASSOCIATIONS  [§  23 

least  with  the  ruling  house.  These  were  theories  of  secular 
content  which  harmonized  with  the  above-cited  Canonistic 
theories,  and  which  eventually  found  additional  and  important 
support  in  the  political  theory  of  the  antique  world  with  which 
men  were  then  making  acquaintance.  There  was  thus  developed, 
within  both  State  and  Church,  a  like  conception  of  the  foundation. 
_And  this  was  now  applied,  following  the  Canon  law,  to  endow- 
ments established  by  private  persons,  which  were  left  uncon- 
nected with  State  and  Church  save  that  to  both  of  these  there  was 
attributed  a  general  power  of  oversight  over  such  endowTnents. 
The  contrast  between  "  Anstalt  "  and  "  Korperschaft  "  thence- 
forth retained  fundamental  importance.  The  corporate  associa- 
tion represented  an  aggregate  of  persons  ("  Personengesamtheit  ") 
conceived  of  as  a  holder  of  rights  directed  by  the  collective  will 
resultant  from  the  formal  fusion,  in  prescribed  manner,  of  the 
several  individual  wills.  On  the  other  hand,  the  "  foundation  " 
was  not  based  upon  the  will  of  a  majority,  but  was  subjected  to 
an  external  will  from  above,  be  it  that  of  a  ruler  or  superior  in 
whom  the  foundation  is  integrated,  or  that  of  the  founder,  who 
remains  permanently  active  in  his  private  endowment.  In  the 
development  of  the  concept  of  the  foundation  and  in  the  classi- 
fication under  it  of  the  State,  of  ecclesiastical  establislmients 
("  Institute  "),  and  of  endo^^'Tnents,  one  may  well  recognize  an 
extension,  reasonable  enough  from  the  standpoint  of  Germanic 
law,  of  the  doctrine  of  collective  personality. 

The  same  cannot  be  said  of  the  extension  to  corporate  associa- 
tions of  "foundational"  elements,  and  the  transformation  of 
many  corporate  associations  —  for  example,  universities  —  into 
"  foundations."  But  this  reflects  the  growing  tendency  of  the 
time  to  break  down  the  self-imperium  ("  Selbstherrlichkeit  ") 
of  the  medieval  "  Korperschaft  "  ;  ^  a  tendency  which  ultimately, 
under  the  lead  of  the  law  of  nature,  united  politics  and  jurispru- 
dence in  an  endeavor  to  destroy  all  independent  corporate  life, 
and  to  set  in  its  place  an  all-powerful  State,  sweeping  away  the 
corporate-concept  along  with  that  of  the  foundation. 

The  "  Korperschaftcn  "  of  the  German  law  were  treated  out- 
right as  "  Korporationen  "  in  the  sense  of  the  common  law  theory. 
They  were  regarded,  therefore,  as  fictitious  persons.  Accordingly, 
since  as  non-existent  beings  they  could  not  act,  representatives 
must  be  appointed  for  them.  And  so  men  came,  in  Germany 
also,  to  class  juristic  persons  with  infants  and  insane  persons, 
^Gierke,  "Privatrecht",  I,  461. 

155 


§  23]  THE    LAW    OF    PERSONS  [BoOK  1 

who  can  likewise  participate  in  legal  transactions  only  through 
representatives  recognized  by  the  statutory  law.  This  arrange- 
ment passed  over  into  modern  codes.  True,  capacity  to  hold 
property  was  conceded  them  as  a  matter  of  course ;  but  delictual 
capacity,  in  the  strict  sense  of  the  Roman  law,  was  denied  them. 
The  sharp  division  between  juristic  persons  as  such  and  their 
members,  —  a  division  which  was  flatly  contradictory  of  the 
native  law,  —  was  advocated  as  at  least  the  sole  institute  that 
satisfied  the  needs  of  theory ;  but  of  course  this  could  not  be 
fully  established  by  statute.  Similarly,  the  Romanists  demanded 
the  introduction  of  the  Roman  concession  theory  of  incorpora- 
tion. In  fact  most  of  the  Territorial  systems  of  law  took  this 
view,  and  associated  tlie  attainment  of  juristic  personality  with 
an  express  act  of  recognition  by  the  State.  Whether  this  prin- 
ciple also  acquired  a  common  law  authority  remained,  it  is 
true,  in  dispute.  At  all  events,  it  was  in  complete  contradiction 
to  the  native  tradition.  Moreover,  men  were  constrained  to  do 
away  with  it  as  regarded  certain  classes  of  corporations  and  to 
introduce  for  these  the  freer  principle  of  normative  preconditions. 

As  the  "  Korperschaft  "  was  subjected  to  the  corporation-con- 
cept of  the  alien  law,  so  the  principles  of  the  Roman  "  societas  " 
were  applied  without  qualification  to  the  relationships  of  collective 
hand  of  the  German  law ;  and  there  was  doubtless  involved  in 
this  a  violence  to  the  native  law  still  more  incomprehensible. 
Precisely  here,  however,  the  alien  doctrine  proved  incapable  of 
forcing  into  its  categories  the  forms  of  the  living  German  law.  The 
t^'pes  of  partnership  of  the  commercial  law,  particularly,  escaped 
from  its  control  at  a  comparatively  early  date ;  and  in  the 
regulation  of  partnership  law  the  legislation  of  the  1700  s  was 
compelled  to  make  many  concessions  to  Germanic  ideas  (supra, 
p.  146). 

(Ill)  The  Renascence  of  the  Native  Law.  (1)  In  Legal  Theory. 
—  So  long  as  tiie  associational  ("  Vercins  ")  life  of  Germany  was 
prostrate  in  consequence  of  its  general  political  and  economic 
decline,  and  so  long  as  the  literary  and  legislative  activity  of  the 
jurists  was  directed,  in  more  or  less  naively  rationalistic  manner 
and  with  an  entire  lack  of  historical  discernment,  toward  an 
adjustment  of  legal  theory  to  the  needs  of  practical  life  without 
much  regard  to  logic  or  principle,  the  unsatisfactory  state  of  the 
law  of  associations  was  not  urgently  apparent.  But  it  was  bound 
to  become  so  when  the  associational  type  of  organization  wakened 
to  new  life  at  the  beginning  of  the  1800  s,  and  modern  historical 

156 


Ch.\P.  m]    JURISTIC    PERSONS   AND   OTHER    ASSOCIATIONS  [§  23 

and  doctrinal  research  showed  that  the  existing  law  was  neither 
in  agreement  with  the  Roman  sources  nor  itself  presented  a  con- 
sistent system.  The  more  zealous  the  Romanists  were  to  estab- 
lish the  principles  of  the  pure  Roman  law  as  the  only  ones  entitled 
to  recognition,  the  more  insistent  was  the  opposition  thereto  on 
the  part  of  the  Germanists.  It  was  the  great  achievement  of  the 
associational  theory,  —  as  this  was  first  formulated  by  Beseler,^ 
and  then  elaborated,  in  particular,  by  Gierke,^  who  chose  this  in 
a  special  sense  as  his  life  work,  —  that  it  finally  cleared  the  way 
for  an  understanding  of  the  German  law,  taught  men  to  realize 
the  peculiar  genius  of  this,  and  helped  it  to  a  revived  authority. 

The  "  association-theory  "  ("  Genossenschaftstheorie  ")  in  the 
ultimate  form  given  it  essentially  by  Gierke,  showed  that  the  two 
Roman  categories  of  "  universitas "  and  "  societas "  did  not 
suffice  to  make  intelligible  the  t^^^es  of  the  Germanic  law  of  asso- 
ciations. It  offered  in  their  place  the  contrast  developed  in  the 
sources  between  corporate  association  and  association  in  communi- 
ties of  collective  hand  in  the  senses  above  explained,  and  proved 
that  the  wealth  of  forms  in  German  law  was  explicable  only  by 
the  possibility  which  it  afforded  of  assimilating  the  corporate 
association  to  the  community  of  collective  hand  through  a 
recognition  of  the  separate  rights  of  the  members,  and  the  com- 
munity of  collective  hand  to  the  corporate  association  by  re- 
garding the  commoners  collectively  as  constituting  a  composite 
entity  recognized  by  the  law  of  persons,  and  by  the  recognition  of 
a  special  social  property  ("  Gesellschaftsvermogen  ").  It  showed 
that  the  German  law  had  developed  in  the  "  Korperschaft  "  its 
own  peculiar  conception  of  a  collective-person  ("  Gesamtperson  ") 
distinct  from  the  physical  members.  This  collective  person  of 
German  law  is  not,  like  the  Roman  "  corporatio  "  ("  Korpora- 
tion  "),  a  fictitious  person ;  nor  can  it  be  understood  through  the 
principles  of  appointed  funds  for  special  purposes  ("  Zweckver- 
mogen  "),  or  by  making  the  beneficiaries  ("  Destinataren  ")  col- 
lectively the  subjects  of  the  common  rights,  —  nor  did  these 
theories  even  fit  the  Roman  law  itself. 

The  "  Genossenschaftstheorie  "  pointed  decisively  toward  the 
conclusion  that  the  collective  person  possessed  an  actual  existence 
in  all  the  forms  in  which  it  was  manifested ;  hence  it  necessarily 
sought  to  deduce  from  general  principles  of  legal  philosophy  a 

1  First  in  his  "Lehro  von  den  Erhvertragen",  I  (1835);  later  in  the 
writings  cited  on  pp.  31  and  36  supra. 

2  In  the  writings" cited  on  p.  110  supra. 

157 


§  23]  THE    LAW   OF    PERSONS  [BoOK   I 

solution  of  the  difficult  problems  of  the  nature  of  juristic  persons 
and  the  possibility  of  a  collective  will.  Granting  that  it  may, 
in  this  endeavor,  have  fallen  to  some  extent  into  all  too  abstract 
and  nebulous  refinements ;  granting  also  that  it  may  well  have 
left  unduly  in  the  background  the  indisputable  fact  that  such 
collective  person,  through  its  very  lack  of  a  natural  basis,  nuist 
always  remain  essentially  different  from  the  sei)arate  individuals 
composing  it,  and  that  after  all  it  is  the  individual  human  beings 
for  whose  sake  all  human  unions  exist,  not  vice  versa,  —  still,  it 
sharpened  our  sight  for  discernment  of  the  fact  that  juristic 
persons,  even  though  not  sensible  to  sight  and  handling,  share 
this  lack  of  physical  existence  with  all  ofhcr  juristic  facts  and 
concepts.  And  as  we  nevertheless  ascribe  reality  to  property  or 
to  an  obligational  relation,  so  too  the  State,  the  commune,  the 
society,  the  endowment,  are  real ;  not  merely  fictional.  We  are 
compelled  in  our  juristic  thinking  to  group  together  certain  phe- 
nomena and  processes  of  social  life  under  the  category  of  juristic 
persons,  —  that  is  of  legal  personalities,  —  that  correspond  to 
no  individual  human  beings.  The  discernment  of  this  fact  of 
legal  theory,  which  became  of  essential  importance  in  the  theory 
of  the  State,  was  an  achievement  of  ideas  developed  in  Ger- 
manic law.^ 

(2)  7/1  Positive  Law.  —  After  the  "  Genossenschaftstheorie  " 
had  won  increasing  influence  in  the  administration  of  justice  and 
had  received  recognition  in  many  imj)erial  statutes,  notably 
those  of  the  commercial  law,  it  was  adopted  by  the  present  Civil 
Code  as  the  basis  of  the  law  of  the  society  ("  Verein  ")  and  of 
the  partnership  ("Gesellschaft ").  The  Civil  Code  no  longer 
knows  a  "  persona  ficta  " ;  it  concedes  to  juristic  persons  not 
merely  capacity  for  holding  property,  but  also  —  as  it  does  to 
physical  persons  —  situs,  name,  civil  honor,  etc. ;  it  ascribes  to 
them  capacity  for  action,  and  also  —  here  again  like  the  old  Ger- 
manic law  —  delictual  capacity.-  It  is  true,  however,  that  because 
of  political  misgivings  a  general  introduction  of  the  principle  of 
free  association,  such  as  is  realized  in  the  English  law  for  example, 

•  The  rrermanistie  theory  has  recently  been  sharply  attacked  by 
ffiil'lrr,  "Natiirlir'ho  und  jiiristische  Personen"  (1905).  One  may  well 
approve  the  n'pudialion  of  certain  exajiffjerations  and  one-sided  views  of 
the  (iermanists.  Still  more  radical  is  liinrhr,  "Das  Proldem  der  juris- 
tisfhen  Perstinlichkeit"  fl!KM)).  See  also  Olio  Mayer,  "Die  juristische 
Person  und  ihre  Verwertbarkeit  im  (iffentlif^hen  R(>c])t"',  in  "Staats- 
reehtliche  Abhandhmsfen,  Fes(},'al)e  ftir  Laband"  (19!),S),  I,  1-94. 

*  r/.  herewith  Flcincr,  "  Institutionen  des  deutschen  Verwaltungs- 
rechts"   (1911),   l.'i?  d  scq. 

158 


Chap.  Ill]    JURISTIC    PERSONS   AND    OTHER   ASSOCIATIONS  [§  23 

has  not  been  ventured ;  the  concession-system  being  retained  to 
a  considerable  extent  beside  that  of  normative  requisites.^  On 
the  other  hand,  the  Swiss  Civil  Code  has  adopted  the  principle 
of  complete  freedom  of  association  and  endowment.  Societies 
("  Vereine  ",  —  "  associations  "  in  the  French  text  of  the  Code) 
with  economic  ends  do  require  registration  in  the  commercial 
register  (§  61) ;  but  the  steps  to  such  registration,  "  instead  of 
leading  through  strict  normative  conditions  expressive  of  anxiety 
and  distrust,  are  completely  free  " :  so  soon  as  the  corporation 
is  organized  it  is  empowered  to  demand  registration.  And 
"  societies  that  are  devoted  to  an  end  neither  political,  religious, 
scientific,  artistic,  charitable,  social,  or  otherwise  non-economic, 
attain  personality  so  soon  as  the  will  to  exist  as  a  corporation 
("  Korperschaft  ")  is  discernible  in  their  by-laws"  (§60).  As 
species  of  juristic  persons,  the  German  Civil  Code  (which,  be  it 
remembered,  regulates  only  those  of  private  law)  sets  beside  the 
society  ("  Verein  ")  —  which  corresponds  to  the  corporate  asso- 
ciation ("  Korperschaft  ")  of  the  old  German  law  —  the  endow- 
ment ("  Stiftung  ") ;  that  is,  a  "  foundation  "  ("  Anstalt  ") 
with  a  legal  personality  that  is  created  by  the  will  of  a  private 
person.  Finally,  the  principle  of  collective  hand  has  been  made 
by  the  Code  the  basis,  not  only  of  the  marital  and  continued 
marital  community  of  goods  and  the  community  of  heirs,  but 
also  —  what  is  most  important  —  of  the  ordinary  partnership 
of  the  private  law  (§§  705-740).  In  so  doing  it  assimilated 
this  to  the  unlimited  mercantile  partnership,  following  the  ex- 
ample of  the  Prussian  "  Landrecht."  The  ordinary  mercantile 
partnership  of  the  private  law  of  to-day  constitutes,  like  the  old 
community  of  collective  hand,  an  entity  in  which  are  bound  to- 
gether the  individual  associates,  and  which,  without  actually 
})ossessing  independent  legal  personality,  has  the  appearance, 
particularly  in  relations  with  third  parties,  of  a  solidary  and  self- 
sufficient  body.  It  can  have  its  own  social  property,  which,  as  a 
separate  estate  distinct  from  the  private  estates  of  the  partners, 
belongs  to  these  in  collective  hand.  Similarly,  partnership  obliga- 
tions are  possible  that  are  not  at  the  same  time  private  debts  of 
the  members,  and  for  which  these  are  liable  in  collective  hand. 

Thus,  within  the  law  of  associations,  a  triumph  great  almost 
beyond  expectation  has  been  vouchsafed  to  Germanic  legal  science, 
both  in  theory  and  in  positive  law. 

1  Hedemann,  "  Fortschritte  des  Zivilreehts " ,  I,  39-52. 

159 


24] 


THE    LAW    OF   THINGS 


[Book  U 


BOOK   II.     THE    LAW   OF   THINGS 


Chapter  IV 


THINGS 


§  24.    The     Concept     of      Things. 
Rights  in  Things. 
I.    Tlie    Legal    Concept    of 
Things. 

(1)  Tilings. 

(2)  Incorporeal  things. 
II.    Rights  in  Things. 

(1)  Real      rights,  —  in 

corporeal  tilings. 

(2)  Real    rights    in    in- 

corporeal things. 

(3)  ^'Jura  ad  rem"  and 

"jura  in  re." 
§  25.    Immovable      and      Movable 
Thin<^s. 
I.    The    Law    of    Land  and 
the  Law  of  Chattels. 
II.    Delimitation  of  the  Two 
Classes  of  Things. 

(1)  Immovables. 

(2)  Movables. 

(3)  "JNIobiHzing"      and 

"demobilizing"  of 
chattels. 

(4)  Incorporeal  things. 

§  26.    Things    of    Limited    Traffic- 
ability. 

I.    Ownership     limited     by 
Dedication  to  a  Special 
End. 
(1)  Public      things      or 
property. 
(A)  Things        dedi- 
cated     to     a 
common  use. 


(B)  Things  dedi- 
cated to  pub- 
lic service. 
(2)  Things  dedicated  to 
the   burial   of   the 
dead. 
II.    "Res      communes      om- 
nium." 
III.    "  Res  nullins." 
§  27.    Individual     and     Composite 
Things. 

I.    Simple  Things  and  Com- 
ponent Parts. 

(1)  Simple  things. 

(2)  Comjjonent  parts. 

(A)  Buildings. 

(B)  Stories  of  Build- 

ings. 

(C)  Espk-es. 

(3)  Non-essential    com- 

ponent parts. 
II.    Composite  Things. 

(1)  Principal  things  and 

appurtenances. 

(A)  Ciiattels  appur- 

tenant       to 
land. 

(B)  Chattels  appur- 

tenant      to 
chattels. 

(C)  Lands      appur- 

tenant      to 
other  lands. 

(D)  Rights    as    ap- 

Iiurtenances. 

(2)  Composite   things. 


§  24.  The  Concept  of  Things.  Rights  in  Things.  (I)  The 
Legal  Concept  of  Things.  — ^  (1)  The  hiw  api)lic.s  the  expression 
"  tfiing  "  ("  Saelie  "),  in  its  primary  and  most  important  sense,  to 
that  whieh  also  in  common  speech  is  called  a  "  thinsj;  ",  —  namely 
"  the  impersonal  corporeal  pieces  of  the  outer  world."  ^  In  so 
doing  it  lays  down  as  its  basis  the  view  of  practical  life,  without 


1  Zitelmann,  "  Das  Recht  des  blirgerlichen  Gesetzbuchs. 
Tail"  (1900),  70. 

160 


Allgemeiner 


Chap.  IV]  THINGS  [§  24 

endeavoring  to  adhere  to  the  categories  of  natural  science. 
"  Sache  ",  thing,  is  not  equivalent  to  "  Naturgegenstand  ",  or 
natural  object.  It  is  corporeal  things,  therefore,  that  are  primarily 
the  "things"  of  the  law.  As  the  Romans  said,  "res  quae  tangi 
possunt"  ;  and  without  doubt  Germanic  law  also  had  as  its  point 
of  beginning  this  narrowest  conception  of  a  thing. 

(2)  Just  as  the  Roman  law,  however,  already  set  "  res  incorpo- 
rales  "  beside  the  "  res  corporales  ",  so  in  the  Middle  Ages  and 
later  men  had  resort  to  the  legal  concept  of  incorporeal  things. 
To  the  Romans  rights  were  incorporeal  things.  They  included 
under  the  general  concept  of  "res  "  (=  "  Vermogensbestandteil  ", 
i.e.y  any  portion  of  property)  both  "  res  corporales  "  and  "  res 
incorporales."  But  while  thus  classifying  things  as  corporeal  and 
incorporeal  they  nevertheless  made  corporeal  things  identical 
with  "  res  quae  tangi  possunt  ",  and  thereby  violated,  it  must 
be  admitted,  logic.  For  corporeal  things,  as  such,  are  not  re- 
garded by  the  law;  they  do  not,  as  such,  concern  "  property  ",  — 
but  only  in  so  far  as  legal  rights  are  attached  to  them ;  in  other 
words,  to  be  accurate,  again  as  "  res  incorporales  "  only.  It  was 
different  with  the  medieval  view,  which,  though  itself  by  no  means 
above  criticism  in  its  theory,  was  highly  characterized  by  imagina- 
tive lucidity.  The  value  of  a  corporeal  thing,  —  of  a  piece  of  land 
or  an  animal, — lies  in  the  economic  utility  that  it  possesses  for 
him  who  is  the  holder  of  rights  in  it.  And  so  here  also  men  came 
to  identify  the  right  with  the  thing.  Men  regarded  not  alone 
the  land  but  also  the  right  in  it,  whether  ownership  or  another 
usufructuary  right,  as  a  thing ;  namely,  an  incorporeal  thing. 
The  modern  codes  have  gone  even  further  than  this  medieval 
view,  extending  it  from  rights  in  things  to  all  rights  whatever. 
The  Prussian  "  Landrecht  "  (I.  2,  §  1.  2),  for  example,  described 
as  a  thing  "  whatever  can  be  the  object  of  a  right  or  of  an  obliga- 
tion, including  the  acts  of  men,  and  equally  their  rights  in  so  far 
as  these  can  constitute  the  objects  of  other  rights."  Nevertheless 
the  extension  of  the  "  thing-concept  "  beyond  corporeal  things 
has  been  in  recent  times  definitively  abandoned.  The  new  Civil 
Code  (§  90),  following  the  precedent  of  the  Commercial  Code, 
understands  by  "  Sachen  "  corporeal  things  only.  At  the  same 
time  it  applies  its  rules  concerning  corporeal  things  to  whatever 
other  objects  can  be  property,  namely  to  property  rights ;  so 
that,  as  to  these,  the  category  of  incorporeal  things  continues  to 
be  necessary.' 

1  Gierke,  "Privatrecht",  II,  3. 
161 


§  24]  THE   LAW    OF   THINGS  [BoOK   II 

(II)  Rights  in  Things  ("Saclienrcclite").  (1)  Rii::hts  attaching 
to  corporeal  things  arc  called  rail  ("  dingliche  ")  rights.  Their 
content  constitutes  the  law  of  things.  In  so  far  as  a  corporeal 
thing  is  the  immediate  object  of  such  real  rights,  and  in  so  far  as 
they  secure  to  the  person  entitled  thereto  a  direct  control  over  it 
as  against  the  world,  —  although  perhaps  only  in  the  negative  sense 
that  he  can  prohibit  interference  with  it  by  strangers, — they 
stand  opposed  to  personal  rights,  which  merely  subject  the  will 
of  a  particular  person,  in  a  particular  respect,  to  the  control  of 
him  who  is  entitled  thereto. 

This  division  of  all  property  rights  into  the  two  classes  of  real 
rights  and  personal  rights,  —  a  division  basic  in  the  Roman  as  in 
modern  law,  —  was  not  unknown  to  the  medieval  law.  It,  too, 
knew  the  concept  of  real  rights,  although  here  again,  for  reasons 
easily  understood,  no  theoretical  development  of  the  conception 
was  realized.  The  existence  of  the  category  of  real  rights  has  been 
denied  by  some  scholars  (Laband,  Stobbe),  but  without  reason. 
For,  as  Heusler  has  shown  in  reply,^  the  medieval  law  conceived 
of  all  rights  that  assured  actual  control  over  things  —  or,  in  the 
vernacular,  "  seisin  "  ("  Gewere  ",  —  §  28  infra)  —  as  a  group 
of  rights  distinct  from  all  others.  Every  right  that  was  evi- 
denced by  seisin  was  a  real  right ;  and  every  action  that  relied 
upon  seisin  of  a  thing  was  a  real  action.  It  follows  that  the  field 
of  real  rights  was  not  one  of  hard  and  fast  boundaries,  as  in  the 
Roman  law  ;  but  that  every  right  that  assumed  the  form  of  seisin 
thereby  became  real.  Whereas  personal  rights  are  effective  only 
against  definite  obligors,  real  rights  are  rights  "  in  rem  "  ("  abso- 
lut  "),  that  is  are  effective  against  everybody.  This  was  as  much 
the  case  in  medieval  times  as  in  Rome  and  among  ourselves  to-day. 
Where  such  effect  was  lacking,  as  for  example  when  no  action  was 
allowed  against  a  third  person  to  the  owner  of  a  movable  j)ledged 
or  bailed,  it  was  precisely  because  the  seisin  essential  as  the  basis 
for  a  real  action  was  there  lacking,  and  only  the  possibility  of  a 
personal  action  against  the  other  party  to  the  contract  existed 
(r»/ra,  §58). 

(2)  The  extension  of  the  thing-concept,  as  defined  above,  to 
rights  of  permanent  usufruct  led  logically  to  the  recognition  of  the 
existence  of  real  rights  in  such  usufructuary  rights,  considered  as 
incorporeal  things.  For  these  real  rights  ("  Gerechtsame  ")  might 
equally  well  in  the  medieval  view  be  the  object  of  seisin.  Thus  men 
arrived  at  the  conception  of  rights  in  rights.  This  was  another  ex- 
1  "Institutionen",  I,  384  et  seq. 
162 


Chap.  IV]  THINGS  [§  24 

tension  little  satisfactory  to  legal  logic,  but  it  was  perfectly  adapted 
to  the  extension  of  the  law  of  things,  as  demanded  by  the  increas- 
ing needs  of  economic  life,  to  incorporeal  things.  It  led  in  this  case 
to  a  blurring  of  the  sharp  line  maintained  in  Roman  law  between 
the  law  of  things  and  the  law  of  obligations. 

(3)  A  similar  confusion  was  that  which  men  called  a  "  ius  ad 
rem  "  ("  Recht  zur  Sache  "),  which  was  independently  developed, 
in  different  aspects,  in  both  feudal  and  Canon  literature  in  the 
1200  s.^  It  eventually  passed  over  into  modern  codes,  and  not- 
ably into  the  Prussian  "  Allgemeines  Landrecht."  The  term  was 
coined  by  the  feudists  to  designate  the  legal  status  of  one  who 
had  been  invested  with  a  fief  but  had  not  yet  received  physical 
possession.  Had  it  been  remembered  that  the  acquisition  of  real 
rights,  through  investiture,  lay  in  the  seisin  of  the  fief,  there  could 
have  been  not  a  moment's  hesitation  in  ascribing  to  one  so  invested 
real  rights  in  such  a  fief,  —  a  "  ius  in  re."  The  Italian  feudists, 
however,  who  were  under  the  influence  of  Roman  ideas,  were  dis- 
inclined to  recognize  such  rights  as  arising  otherwise  than  through 
the  giving  of  actual  possession.  They  therefore  regarded  the  right 
of  one  invested  but  not  yet  instated  in  possession  as  merely  a 
"quasi-real"  ("  relativ-dingliches  ")  right,  and  called  it  —  in  con- 
trast to  tl;e  fully  potent  "ius  in  re"  —  a  "  ius  ad  rem  "  :  a  right 
of  the  vassal  against  the  lord  of  the  feud  to  be  put  into  possession. 
Like  the  feudists,  the  Canonists  went  astray  when  they  designated 
as  a  "  ius  ad  rem  "  the  legal  relation  that  resulted  from  papal  pro- 
curations and  expectancies.  As  in  one  case  the  fief,  so  here  the 
benefice,  led  to  a  like  treatment;  which  is  easily  explicable,  since 
in  the  fief  as  in  the  benefice  there  appeared  the  contrast  of  symbolic 
investment  and  actual  instatement  in  possession.  It  was  a  Ger- 
manic legal  concept  which  in  both  cases  stood  in  the  way  of  a 
complete  divorce,  such  as  existed  in  the  Roman  law,  of  the  real 
juristic  act  from  the  obligatory  contractual  act  giving  rise  thereto, 
and  which  produced  in  its  conflict  with  the  Roman  "  ius  in  re  " 
the  concept  of  the  "ius  ad  rem"  —  "impelled  thereto,  in  the  case 
of  the  Canon  law,  by  the  interest  of  the  papacy  in  its  benefices, 
which  were  spreading  throughout  the  world."  ^  In  the  later  law, 
most  clearly  in  the  Prussian  "  Allgemeines  Landrecht  ",  there 
grew  out  of  this  fact  the  assumption  of  a  right  to  the  surrender  of 
a  thing,  which  was  good  not  only  against  the  contract  party  obli- 

^  Heymann,  "Zur  geschiehte  des  jus  ad  rem",  in  the  "Festgabe  0. 
Gierke  dargebraeht"  (1911),  1167-1185. 
^  Heymann,  op.  cit.,  1184. 

163 


§  24]  THE    LAW   OF   THINGS  [BoOK   II 

gated  to  such  transfer,  but  also  (at  least  to  some  extent)  against 
all  third  persons  :  out  of  which  personal  right  to  a  thing  there  arose 
through  an  actual  instatement  in  possession  a  real  right  in  the 
thing.  To  our  law  in  its  latest  form  this  superfluous  fore-stage  of 
the  real  right  is  unknown. 

§  25.  Immovable  and  Movable  Things.  (I)  The  lav?  of  Land 
and  law  of  Chattels.  —  Corporeal  things  are  divisible  with  regard 
to  their  natural  qualities  into  inunovablesand  movables  ("Liegen- 
schaften  ",  "  Fahrnis  ").  The  law  can  in  very  great  part,  although 
never  wholly,  disregard  this  natural  difference,  and  give  to  its 
principles  so  general  and  abstract  a  form  as  to  be  equally  applicable 
to  both  classes  of  things.  This  the  later  Roman  law  did.  Not  so 
the  legal  system  of  the  ]\Iiddle  Ages,  which,  on  the  contrary,  con- 
verted the  natural  contrast  into  a  legal  distinction  of  primary  im- 
portance. As  regards  possession,  acquisition  of  ownership,  real 
rights,  the  law  of  pledge,  of  family  estates,  and  of  succession,  it 
subjected  immovables  to  legal  rules  different  from  those  api)lying 
to  movables.  Indeed,  one  may  say  that  it  knew  no  law  of  things, 
but  that  there  existed  a  double  system  of  law :  one  for  immov- 
ables, another  for  movables ;  besides  the  law  of  land,  an  inde- 
pendent law  of  chattels.^ 

The  reason  for  this  was  not  that  from  time  immemorial  a  higher 
economic  value  had  been  attributetl  to  land  than  to  movable 
objects  of  property.  In  times  of  primitive  culture  that  knew  as 
yet  no  individual  rights  in  the  soil,  a  man's  wealth  consisted 
of  his  charger  and  weapons,  cattle  herds  and  slaves,  chests  of 
golden  ornaments,  and  vesture.  Although  such  objects  did  not, 
after  possession  and  ownership  of  land  by  individuals  had  taken 
form,  on  that  account  lose  their  intrinsic  value,  there  was  soon 
developed  that  economic  and  social  order,  peculiar  to  the  Middle 
Ages,  which  made  possessory  relations  to  land  the  basis  of  the  legal, 
political,  and  economic  status  of  the  members  of  the  folk,  and  of 
their  class  divisions.  Herein,  the  medieval  law  envisaged  differ- 
ently than  did  the  Roman  the  facts  that  lands  are  indestructil^le 
parts  of  the  State  domain ;  that  they  are  the  basis  of  the  social 
existence  of  whole  families  through  generations,  and  may  therefore 
serve  not  alone  the  individual  but  society  generally  as  well.-  Dur- 
ing the  continuance  of  an  agricultural  economy  legal  traffic  afTected 
only  their  use ;  not,  as  in  the  case  of  chattels,  their  substance.    The 

^  Cosack,  "Lehrbuch  des  deutschen  biirgerlichen  Rechts",  I  (3d  ed., 
1900),  1.36. 

2  Herbert  Meyer  in  op.  cil.  infra,  p.  172,  at  279. 

164 


Chap.  IV]  THINGS  [§  25 

legal  relations  associated  with  land  owed  their  origin  and  elabora- 
tion to  a  more  modern  stage  of  historical  development  than  did 
those  associated  with  chattels,  which  go  back  to  the  most  primitive 
conditions  of  society ;  but  they  eventually  received,  thanks  to  their 
importance,  an  elaboration  all  the  richer.  As  "  the  great  interests 
of  the  nation,  the  conditions  of  independent  existence  and  of  polit- 
ical freedom,  revolved  about  possessory  relations  to  land  as  an 
axis  ",  so  the  medieval  legal  order  worked  most  creatively  within 
this  same  field,  and  in  the  shaping  of  the  law  of  real  property  ac- 
complished "  a  feat  of  the  first  order  in  the  way  of  harmonious 
legal  construction,  consistent  down  to  the  smallest  details."  ^ 

When  movable  capital  became  prominent  in  the  cities,  and  per- 
sonal status  there  became  for  the  first  time  independent  of 
the  possession  of  land,  —  for  the  new  wealth  of  the  cities  by  no 
means  necessarily  rested,  in  its  origins,  upon  accumulated  ground- 
rents,  —  the  different  treatment  of  land  and  chattels  was  inten- 
tionally maintained.  In  the  interest  of  the  security  so  essential 
to  legal  transactions  in  land,  and  which  Germanic  law  had  de- 
veloped under  primitive  conditions,  men  gladly  abstained  from 
copying  the  Roman  law  in  assimilating  the  possession  of  land  to 
the  trafficability  of  merchandise.  While  the  English  law  has  pre- 
served to  the  present  day  the  old  Germanic  view,  and  among  all 
the  legal  systems  of  western  Europe  has  developed  it  most  in- 
flexibly,2  in  Germany  the  difference  in  the  legal  nature  of  immov- 
ables and  movables  was  to  a  considerable  extent  abandoned,  at 
least  in  the  common  law,  in  consequence  of  the  Reception.  For 
that  very  reason,  however,  the  particularistic  legal  systems  clung 
all  the  more  firmly  to  the  contrast,  and  from  them  it  passed  with 
renewed  vitality  into  the  great  codes  of  the  modern  period,  into 
numerous  modern  statutes,  and,  finally,  into  the  most  recent 
legislation  of  the  Empire.  The  result  has  been  justly  character- 
ized as  a  "  triumphant  progress  of  Germanic  ideas."  ^ 

(IT)  The  Delimitation  of  the  Two  Classes  of  Things.  —  (1)  Im- 
movables ("  liegendes  Gut  ")  are,  of  course,  in  the  first  place  lands 
("  Grundstiicke  ",  "  Liegenschaften  ",  "  terra  ",  "  res  ",  "  posses- 
sio  ",  "  proprietas  ",  "  hereditas  ",  "  eigen  ",  "  erbe  ",  etc.).  But 
they  also  include,  besides  "Liegenschaften"  proper  —  that  is 
definite  portions  of  the  earth's  surface,  —  whatever  is  connected 

1  Heiisler,  "Institutionen",  II,  12. 

2  Vinogradoff,  "Zur  Gosehiehte  der  Engliselaen  Klassifikation  der 
Vfirmogeusrechte",  in  "Festgabe  H.  Brunner  dargebraeht "  (1910), 
573-577. 

'  Gierke,  "Privatreeht",  II,  5. 

165 


§  25]  THE    LAW    OF   THINGS  [BoOK   II 

with  the  soil  organically,  as  for  example  trees,  or  mechanically,  as 
houses;  and  which  could  therefore  be  regarded,  equally  with  the 
land,  as  imperishable  objects.  Of  course  these  things  could  be  so 
classified  only  from  the  time  when  they  actually  became  immov- 
able. Like  the  simple  tents  and  huts  of  primitive  times  which  men 
took  down,  after  exhausting  the  land  they  had  i)ut  under  cultiva- 
tion, in  order  to  erect  them  again  at  another  place,  the  wooden 
houses  that  were  common  in  all  parts  of  Germany  down  into  the 
1200  s,  and  in  many  places,  especially  in  North  Germany,  until 
the  1500  s  and  later,  were  regarded  as  movables.  On  the  other 
hand  stone  buildings,  —  at  first  churches  and  town-halls,  then 
the  houses  of  rich  patricians  and  stone  castles  of  the  knights,  M^ere 
surely  always  regarded,  not  only  popularly  but  in  law,  as  im- 
movables. This  was  equally  true  of  places  where  goods  were  sold 
("  Verkaufsstiitte "),  such  as  merchandise-shops  and  butchers' 
stalls,  from  the  moment  a  building  was  solidly  erected,  —  i.e.  not 
merely  for  a  time  but  for  all  time,  —  upon  a  definite  plot  of  land. 
On  the  other  hand,  structures  which  were  erected  merely  with  a 
view  to  their  being  later  taken  down,  such  as  market  booths, 
summer  theaters,  and  (under  some  circumstances)  windmills, 
were  in  earlier  times  reckoned,  as  they  are  still  to-day,  among 
movables. 

(2)  As  opposed  to  immovables,  movables  ("Fahrnis")  — 
"  bewegliches  "  or  "  fahrendes  "  ("  fahren  "  in  the  old  and  wider 
sense  of  "  ire  ",  "  moveri  "  ;  of.  "  fahrender  Schiiler  "),  or  "  trei- 
bendes  ",  in  the  North  also  "  loses  ",  "  greifbares  Gut  "  —  were 
things  removable  from  place  to  place,  and  whose  economic  nature 
was  unaffected  by  such  change  of  locality.  In  the  legal  termi- 
nology of  France  and  England  the  term  "  chattels  ",  —  "  cateux  " 
(literally  "  Viehhiiupter  ",  head  of  cattle),  "  catalla  ",  "  capitalia  ", 
—  was  employed,  because  cattle  were  the  typical  form  of  movable 
property.  To  chattels  belong  those  things  which  were  the  earliest 
objects  of  individual  property  :  arms,  clothes,  ornaments,  utensils, 
the  booty  of  the  chase,  above  all  cattle ;  and  also  slaves.  The 
Schwabenspiegel  gives  this  definition:  "Waz  varende  gut  heizet, 
daz  suln  wir  iu  sagen.  Golt,  silber  und  edel  gesteine,  vie,  ros  unt 
allez,  daz  man  triben  und  tragen  mac —  " :  "  We  shall  now  tell 
you  what  is  called  '  varende  Gut  ' :  gold,  silver,  and  ])recious  stones, 
cattle,  horses,  and  everything  that  one  can  drive  and  carry  "  (G. 
144,  §  3).  Or,  to  put  it  in  a  general  way,  animals  and  all  inanimate 
things  not  firmly  fixed  to  the  soil.' 

'  Gierke,  "  Privatrecht  ",  11. 
1G6 


Chap.  IV]  THINGS  [§  25 

(3)  However,  the  medieval  law  did  not  rest  content  with  making 
this  natural  distinction  between  land  and  chattels  a  legal  one. 
On  the  contrary,  it  sometimes  classified  tangible  things  under  the 
law  of  land  or  of  chattels  from  a  technically  legal  standpoint, 
with  conscious  disregard  of  their  natural  properties.  Such  was 
the  case  when  the  rule  was  established  that  all  wooden  houses 
should  be  regarded  as  chattels,  without  regard  to  their  natural 
immovability,  —  which  in  later  times  was  doubtless  generally  un- 
questionable. This  point  of  view  found  expression  in  the  maxim, 
"  Was  die  Fackel  verzehrt,  ist  Fahrnis  "  :  "  Whatever  the  torch 
consumes  is  a  chattel."  Indeed,  the  legal  qualities  of  movable 
property  could  be  attributed  to  immo^•ables  at  the  caprice  of  indi- 
viduals. Such  "  mobilizing  "  ("  Entliegenschaftung  ",  "  de- 
real  ty-izing  ")  was  practised  particularly  in  Liibeck  in  the  1200  s, 
1300  s,  and  1400  s,  in  order  to  give  to  "  Erbgut  ",  a  heritable 
estate  that  could  be  transferred  only  with  the  common  consent 
of  the  heirs,  the  character  of  "  Kaufeigen  ",  property  which  one 
could  buy  and  hold  as  his  own ;  in  other  words,  in  orrler  to 
release  it  from  the  bonds  of  the  family  estate  and  subject  it  to 
the  free  control  of  the  owner.  In  the  later  law  of  Liibeck  all 
such  restricted  heritable  property  was  treated  by  the  law  as  mov- 
able ;  that  is  it  could  be  freely  conveyed  by  legal  act  "  inter 
vivos  ",  —  though  it  could  not  be  bequeathed.  In  the  law  of 
France  and  Baden  the  legal  transaction  of  "  mobilizing "  or 
"  chattel-izing  "  ("  ameublissement  ")  has  continued  down  to  the 
present  day. 

More  common  in  Germany  was  the  "  demobilizing  "  or  "  realty- 
izing  "  ("  Verliegenschaftung  ")  of  chattels.  A  very  ancient  in- 
stance is  the  treatment  of  settled  slaves,  —  the  "  servi  casati  ",  — 
who  were  regarded  as  "pars  fundi"  and  therefore  shared  the  legal 
fortunes  of  the  land  they  cultivated.  Such  movable  creatures  as 
fish  in  ponds  and  wild  game  in  the  forest  are  even  now  treated  by 
the  Austrian  Code  as  immovable  property  so  long  as  they  remain 
in  freedom.  Again,  particularly  costly  chattels  of  an  estate, 
—  such  as  jewels,  articles  of  gold  or  silver,  art-collections,  libra- 
ries, stocks  of  goods ;  also  the  movable  property  brought  with 
her  into  the  marital  community  by  a  wife,  and  the  capital 
realized  from  the  sale  of  lands,  —  were  quite  commonly  declared 
by  statute  to  be  immovables,  in  order  to  fetter  the  transfer  of 
such  objects.  This  continued  to  be  true  of  modern  legal  sys- 
tems; and  even  in  our  present  law  such  a  "de-mobilization" 
("  Immobilisirung  ")  occurs  in  the  case  of  larger  vessels  :  they  are 

167 


§  25]  THE   LAW   OF  THINGS  [Book   II 

movables,  but  in  many  important  respects,  and  especially  as 
regards  acquisition  of  title  and  mortgaging,  they  are  subjected 
to  the  principles  of  the  law  of  land. 

(4)  IIow  deeply  medieval  law  was  influenced  by  the  contrast 
of  land  and  chattels  is  seen  in  the  fact  that  it  applied  that  dis- 
tinction also  to  incorporeal  things,  little  applicable  to  the  latter 
as  those  natural  properties  would  appear  to  be.  Nevertheless 
such  a  result  was  natural  enough.  As  has  been  already  re- 
marked (supra,  p.  161  et  seq.)  rights  in  things  were  conceived  of 
as  themselves  things,  and  it  was  therefore  easy  to  regard  rights 
in  lands  as  immovable  things,  since  they,  like  the  lands  themselves, 
were  the  source  of  permanent  usufructs.  This  was  the  result  in 
the  case  of  servitudes  and  land  charges  ("  Reallasten  ")  appur- 
tenant to  land,  which  were  treated  as  actual  land ;  so  also  in  the 
case  of  powers  ("  Befugnisse  ")  of  the  public  law,  such  as  judicial 
jurisdiction,  bailiwicks,  regalities,  rights  of  ban,  liberties  of  coin- 
age, and  customs  franchises;  indeed,  even  in  the  case  of  the 
general  right  of  sovereignty.  This  "  real-izing  and  realty-izing  " 
("  Verdinglichung  und  Verliegenschaftung  ")  of  rights  was,  as 
has  been  justly  said,  "  the  most  medieval  part  of  the  medieval 
law."  ^  These  rights  also  secured  permanent  usufruct,  and  were 
objects  of  seisin ;  they  applied  to  definitely  limited  territory ; 
they  resembled,  extremely,  real  rights  in  land.  Down  to  our 
days  such  rights  have  been  treated  as  immovables,  and  have 
therefore,  to  give  an  illustration,  been  provided  with  separate 
leaves  in  the  land  register.  The  present  Civil  Code  recognizes, 
in  this  category  of  rights,  only  heritable  })uilding  rights  (1017), 
but  others  have  been  reserved  to  the  law  of  the  individual  States 
(heritable  leasing  rights,  rights  of  hunting  and  fishing,  etc.). 
In  this  case  the  penuanenci/  of  tlie  economic  use  was  deter- 
minant of  the  legal  view-point ;  in  other  cases  this  was  deter- 
mined by  the  inquiry  whether  the  particular  thing  in  which  the 
rights  in  question  so  inhered  as  to  make  it  appear  the  holder  thereof, 
was  a  movable  or  an  immovable  thing.  The  former,  which  as 
a  rule  secured  to  the  owner  of  a  dominant  tenement  definite 
privileges  ("Befugnisse"),  —  so-called  "subjective  real  rights" 
(i.r.  "  Realrechte  " ;  cf.  infra,  §  27)  —  were  regarded  as  im- 
movable things;  while  all  rights  secured  by  commercial  paper 
("  Wertpapiere  "),  negotiable  or  non-negotiable,  were  regarded 
as  appendants  to  movable  things,  and  were  treated  as  such  them- 
selves. Finally,  there  was  still  another  division,  — though  indeed 
'  Pollock  and  Mailland,  "History",  II,  148. 

168 


Chap.  IV]  THINGS  [§  26 

one  by  no  means  entirely  exact,  —  resulting  from  the  physical 
character  of  the  respective  objects  by  which  the  content  of  such 
rights  was  determined.  From  this  point  of  view  real  rights  in 
land  were  reckoned  among  immovable  things;  although  an  ex- 
ception existed  in  the  common  law  and  in  modern  State  legislation 
in  the  case  of  mortgage  rights,  which  the  present  Civil  Code 
(§§  1237  et  seq.)  also  places  among  movables.  The  same  is  true 
to-day  of  mining  shares.  Real  rights  in  chattels,  on  the  other  hand, 
were  treated  according  to  the  principles  of  the  law  of  movable 
property.  Legal  claims  were  similarly  treated.  Rights  to  demand 
the  delivery  of  a  piece  of  land  or  its  usufruct  are  immovable 
property;  rights  to  demand  the  delivery  of  chattels  —  especially 
of  money,  rights  established  by  litigation,  and  in  general  any 
rights  whatever  that  do  not  involve  the  delivery  of  a  thing,  are 
movable  property. 

§  26.  Things  of  Limited  Trafficability.  —  (I)  There  are  things 
to  which  the  ordinary  law  of  property  cannot  in  its  full  extent  be 
applied,  for  the  reason  that  "  they  are  dedicated  to  a  special  end 
(*  Zweckwidmung ')  which  should  be  protected  in  the  public 
interest."  ^  This  dedication  causes  an  "  objective  constraint" 
("  objektive  Gebundenheit  ")  which  is  shown  in  a  greater  or  less 
restraint  upon  alienation. 

In  the  German  law,  as  in  other  legal  systems,  this  phenomenon 
has  been  known  since  early  times.  It  could  not  be  otherwise. 
The  great  military  roads,  the  streams  that  facilitated  commerce, 
the  communal  woods,  etc.,  existed  either  in  the  interest  of  the 
public  or  of  large  bodies  of  associates,  and  for  that  very  reason 
could  not  be  surrendered  to  individual  ownership  without  regard 
for  such  purposes ;  nor  be  made  the  object  of  any  and  every 
legal  transaction,  —  such,  for  example,  as  rights  of  pledge  or  of 
"  legitimate  "  ("  rechte  ")  seisin. 

It  is  true  that  in  the  J\f iddle  Ages  a  rational  conception  and 
scientific  development  of  these  relations  was  nowhere  attained. 
On  the  other  hand,  the  Roman  doctrine  of  the  "  res  extra  com- 
mercium  "  was  likewise  incapable  of  satisfying  actual  conditions 
that  were  in  many  respects  new.  Only  in  very  recent  years  has  a 
satisfactory  theory  been  established  from  the  viewpoint  of  the  ends 
they  serve  ("  Zweckbestimmung  ",  —  appointed  ends).  Various 
groups  of  such  things  of  merely  partial  trafficability  are  to  be 
distinguished,  therefore,  with  reference  to  the  nature  of  the  end 

'  Zitelmann,  "Das  Recht  des  biirgerlichen  Gesetzbuchs.  Allgemeiner 
Tell"  (1900),  85. 

169 


§  26]  THE    LAW    OF   THINGS  [BoOK   II 

they  serve ;    and  in  accordance  with  this  the   degree  of  their 
transferabiHty  is  also  determined. 

(1)  So-collcd  "Public"  Things  or  Property}  —  Among  these 
are  to  be  reckoned  : 

(A)  Things  dedicated  to  a  common  use  ("  Gemeingebrauch  "), 
the  "  res  pubhco  usui  destinativ  "  of  the  Roman  law.  Such 
dedication  may  be  either  to  the  common  use  of  all,  that  is  of 
the  public,  —  as  for  example  public  rivers  {infra,  §  40),  the  sea- 
shore, lakes,  canals,  harbors,  streets  and  ways,  squares,  bridges, 
parks,  letter-boxes,  public  toilets ;  or  to  the  use  of  a  greater  or 
smaller  group  of  persons,  the  use  not  being  dependent  upon  a 
special  admission  to  such  group,  —  for  example  market  halls,  the 
books  of  a  public  library,  the  treasures  of  a  museum.  A  particu- 
larly important  category  of  the  second  class  is  constituted  of  things 
dedicated  to  religious  ends,  the  "  res  divini  iuris  "  of  Roman  law  : 
namely,  things  intended  for  religious  service  (churches,  chapels, 
synagogues,  "  res  sacrse  ")  and  burial  grounds  ("  loci  religiosi  "). 
Though  the  "  res  divini  iuris  "  in  earlier  and  in  modern  German 
law  are  the  object  of  ownership,  and  not  "  res  nullius  ",  the 
historical  explanation  of  this  fact  is  found  in  the  law  relating  to 
the  Germanic  "  proprietary  "  ("  Eigen-"  —  )  church.^ 

(B)  Things  which  are  dedicated  to  the  public  service  and 
which  therefore  serve  ends  of  general  utility,  precisely  as  do  those 
named  above  under  (A)  notwithstanding  the  fact  that  they  can- 
not be  the  objects  of  common  use :  as  for  example  city  walls, 
fortifications,  public  buildings  and  their  furnishings,  etc. 

On  the  other  hand,  things  held  })y  public  juristic  persons  as 
their  individual  property  do  not  fall  under  the  category  of  "  pub- 
lic "  things :  such  are  lands  of  the  State  and  of  smaller  political 
entities  ("  Gemeinden  ",  communes),  money  in  public  treasuries. 
And  the  same  is  equally  true  of  undertakings  prosecuted  by  such 
persons  as  private  undertakings,  —  for  example  city  gas-works 
or  electric  plants. 

Public  things  always  were  and  still  are  the  property  of  the 
State,  of  communes,  of  religious  societies,  etc.  Such,  at  all  events, 
was  the  doctrine  that  finally  acquired  supremacy  in  the  common 
law  and  equally  in  most  of  the  particularistic  systems,  and  which 
Keller  and  Ihering  vainly  sought  to  overthrow  in  the  famous  con- 

^  Biermann,  "Die  ofTentlichen  Sachen"  (1905);  Otlo  Mayer,  "Der 
gepenwartipTO  Stand  der  FraRo  dcs  offontlinhon  Eigontums",  in  Arch, 
(iff.  R..  XXr  (1907),  499-r)22;  Fleincr,  "  Institutionon  des  deutschen  Vor- 
waltungsrechts"  (1911),  282-290,  29.5-309. 

*  I  owe  this  remark  to  a  friendly  suggestion  of  U.  Stutz. 

170 


Chap.  IV]  THINGS  [§  27 

troversy  concerning  the  fortifications  of  Basel.  There  was  no 
agreement,  it  is  true,  as  regarded  public  rivers  {infra,  §  40).  And 
the  French  law,  with  its  theory  of  the  "  domaine  public  ",  rested 
upon  a  totally  different  basis.  But  this  ownership,  which  —  save 
in  the  French  law  —  is  to  be  regarded  as  private  ownership,  does 
not  confer  the  powers  thereby  ordinarily  implied.  So  long  as 
such  things  are  dedicated  to  their  respective  purposes  they  may 
not  be  dealt  with  in  a  way  inconsistent  therewith,  and  rights 
that  are  repugnant  to  the  advancement  of  such  purposes  cannot 
attach  thereto.  The  present  Civil  Code  has  made  no  essential 
changes  in  the  earlier  law.  It  contains  no  particular  provisions 
concerning  the  matter,  since  the  question  what  things  are  public 
is  one  to  be  decided  by  the  public  law. 

(2)  Things  devoted  to  particularly  appointed  ends  include, 
further,  things  dedicated  to  the  burial  of  the  dead,  the  corpse  itself 
and  the  objects  buried  with  it ;  which  according  to  older  concep- 
tions were  regarded  as  the  property  of  the  dead,  and  were  given 
him  for  his  service  beyond  the  grave.  One  must  doubtless  as- 
sume to-day  an  ownership  by  the  person  who  buries  him,  which 
ownership  is  bound  by  the  special  purpose.^  Here,  it  may  be 
noted,  transferability  is  even  more  limited  than  in  the  case  of 
public  things. 

(II)  "Res  Communes  Omnium."  —  Those  portions  of  nature 
which  are  beyond  all  human  influence,  and  are  consequently 
permanently  exempt  from  all  legal  control,  —  the  "res  communes 
omnium  "  of  the  Roman  law;  as  the  sun,  moon,  stars,  the  high 
sea,  the  free  air,  running  water,  and  the  like,  —  do  not  belong 
among  things  of  limited  trafficability.  They  are  not  in  a  legal 
sense  "  things  "  at  all.  Similarly,  the  living  human  body  is  not 
a  thing ;  for  it  lacks  the  essential  characteristic  of  the  legal  con- 
ception of  things,  namely  impersonality. 

(III)  "  Res  Nullius."  —  But  so-called  ownerless  things  or  "  res 
nullius  ",  —  as  for  example  wild  animals,  —  are  undoubtedly 
things  in  the  legal  sense,  for  they  are  intrinsically  quite  capable 
of  a  legal  control  like  that  over  other  things ;  they  are  only  de  facto 
temporarily  outside  legal  relations.  Unoccupancy  is  unknown, 
moreover,  to  many  legal  systems,  as  for  example  the  French ; 
ownership  of  such  things  being  attributed  to  the  State. 

§  27.    Individual    and    Composite   Things."     (I)    Simple    Things 

^  Zitelmann,  op.  cit.,  86. 

"^  Kunize,  "Die  Kojengcnossensehaft  und  das  Gesehosscigcntum " 
(1888);    Kohler,  "Zur  Lehre  von  deu  Pertinenzen",  in  Ihering's  J.  B., 

171 


§  27]  THE    LAW    OF   THINGS  [BoOK   II 

and  Component  Parts.  —  (1)  Just  as  the  subjects  of  rights  in 
legal  trnnsnctions  are  ordinarily  single  or  individual  persons 
("  Einzelpersonlichkeiten  ",  "  Personenindividuen  "),  so  the  ob- 
jects of  rights  in  legal  transactions  consist  primarily  of  simple 
or  individual  things  ("  Einzelsachen  ",  "  Sachindividuen  ").  They 
are  regarded  by  the  law  as  units,  notwithstanding  that  they 
may  consist,  physically,  of  more  or  less  numerous  parts.  Simple 
or  individual  things  in  the  legal  sense  exist  not  only  where  the 
organic  processes  of  nature  create  distinctive  individual  things, 
as  animals ;  but  also  wherever  a  thing  in  the  commercial 
sense  exists.  Accordingly,  utensils,  clothing,  things  in  bulk 
("  iSIengesachen  ",  such  as  piles  of  corn),  and  for  the  same  reason 
parcels  of  land  are,  for  example,  treated  by  the  law  as  simple 
things. 

(2)  The  component  parts  ("  Bestandteile  ")  of  simple  things  are 
therefore  not  themselves  things  in  a  legal  sense,  but  merely  parts 
of  a  thing.  From  the  standpoint  of  the  law  they  do  not  them- 
selves exist;  rather,  they  constitute,  with  the  principal  thing 
("  Hauptsache  ")  an  actual  economic,  and  legal  whole.  At  the 
same  time  things  are  not  "  individual  "  in  the  same  strict  sense 
as  are  persons.  By  division,  where  such  is  possible,  individual 
things  can  become  several,  parts  of  things  can  become  independ- 
ent things,  an  1  independent  things  may  by  combination  become 
mere  parts.  Even  to  parts  of  things  there  can  be  attributed 
a  certain  legal  distinctiveness.  Of  these  principles  the  medieval 
law  affords  various  examples. 

(A)  Buildings  might  stand  in  the  ownership  of  another  than 
the  owner  of  the  land.  This  principle  is  (loui)tless  an  echo  of  those 
primitive  conditions  in  which  houses  that  were  not  yet  firmly 
attached  to  the  soil  were  regarded  as  chattels,  and  consequently 
did  not  constitute  component  parts  of  the  land  {supra,  p.  KiG). 
But  it  maintained  itself  long  beyond  that  early  period.  The  house 
that  the  medieval  burgher  built  upon  the  plot  of  land  given  him 
in  tenancy  ("  leihen  ")  by  the  town  lord  became  the  builder's 
property;  he  could  sell  it,  bestow  it  as  a  morgive,  etc,  Simila:ly, 
according  to  the   account    of   the    Sachsenspiegel    the  wife  be- 

XXVI  (1888),  1  cl  scq.;  Schroder,  "t)ber  eigpntumlifho  Formen  des 
Miteigentums  im  doutschon  und  franzr)sis('hon  Rocht"  (ISIK)) ;  Martin 
Wolff,  "Dor  Bau  auf  fromden  Bodcn,  insbesondero  der  (rrenziihcrbau  nach 
dem  Biirporliohon  Crcsetzbiiche  fiir  das  Doutsflie  Reich  auf  gosfhichtlicher 
Grundlago",  in  O.  Fischer's  "  Abhandlunpon",  XVI,  No.  2  (irXK)) ;  Herbert 
Meyer,  "Die  rechtliche  Natur  der  nur  scheinbaren  Bestandteile  einea 
Grundstucks",  in  "Breslauer  Festgabe  fur  Dahn",  III  (1905),  2G9-301. 

172 


Chap.  IV]  THINGS  [§  27 

came  owner  of  the  house  that  was  erected  upon  the  husband's 
land  with  the  timber  for  house  and  fence  which  her  husband  had 
given  her  as  her  morgive  (I.  20,  §  1,  2).  That  the  German  law,  in 
other  respects,  —  that  is  where  the  natural  characteristics  of  the 
structure  were  not  involved,  —  treated  the  building  as  a  component 
part  of  the  land,  thus  recognizing  as  did  the  Roman  law  the  prin- 
ciple that  "  superficies  solo  cedit  ",  is  proved  by  the  law  of  the 
proprietary  church.  These  proprietary  churches,  like  all  other 
churches,  were  bound  to  have  a  stone  altar  firmly  attached  to  the 
soil,  and  the  lordship  of  the  soil  below  the  altar,  the  right  to  the  soil, 
disposed  also  of  the  church.^  The  old  rule,  derived  from  the  char- 
acter of  primitive  wooden  buildings  and  inconsistent  with  the 
principle  "  superficies  solo  cedit  ",  maintained  itself  in  some  local- 
ities after  the  Reception.  It  subsisted,  for  example,  rather  widely 
in  Switzerland  and  in  Schleswig-Holstein ;  was  expressly  recog- 
nized under  the  Prussian  "  Landrecht  ",  the  Code  Civil  and  the 
Baden  "  Landrecht " ;  and  is  not  unknown  in  the  English  law. 

In  the  same  way  that  the  old  German  law  treated  cases  in 
which  another  than  the  landowner  erected  a  building  and  ac- 
quired the  property  therein,  it  treated  the  closely  related 
cases  in  which  not  houses,  but  other  structures  and  works  that 
were  annexed  to  the  soil  of  another,  were  involved.  The  butcher 
put  up  shambles  on  the  ground  floor  of  the  house  he  rented,  the 
brewer  buried  in  or  affixed  to  the  walls  heavy  kettles  and  pans : 
evidence  of  the  former  exists  particularly  in  Frankfort  and  Breslau, 
of  the  latter  in  Liibeck.  Nor  were  these  fixtures  ("  Werke  ") 
regarded  as  component  parts,  because,  unless  the  building  itself 
was  specially  devoted  to  the  purposes  of  that  trade,  they  did  not 
serve  the  economic  ends  of  the  building  but  the  personal  ends 
of  the  respective  craftsman  or  tradesman,  securing  to  him  a 
permanent  use.  They  were  therefore  treated,  quite  in  analogy 
to  the  primitive  wooden  houses,  as  independent  pieces  of  land : 
they  could  be  mortgaged,  conveyed,  and  entered  in  the  city 
register  ("  Stadtbuch  ")  in  the  name  of  their  owner,  and  thus 
made  the  object  of  a  land  rent.  The  exceptional  position  which 
the  Civil  Code  assigns  (§  95)  to  so-called  merely  "  apparent 
component-parts  "  {"  scheinbare  Bestandteile  ")  "  must  be  re- 
garded as  a  recognition  and  further  development  of  these  growths 
derived  from  Germanic  law.^ 

'  Stutz  in  the  contribution  cited  on  p.  153  supra  to  the  "Festgabe  fiir 
O.  Gierke",  1250.  ^  Zitelmann,  op.  cit.,  79. 

3  H.  Meyer,  op.  cit.,  295. 

173 


§  271  THE    LAW   OF   THINGS  [BoOK   II 

(B)  From  the  1100s  onward  we  already  find  extremely  wide- 
spread in  German  towns  so-callod  "story"  or  "  rooisiace  " 
0WXER8IIIP  ("  Stockwerks-",  "  Geschoss-",  "Gelass-",  "  Etagen- 
eigentnm  "),  —  ownership  of  the  individual  stories  of  a  build- 
ing. Houses  were  horizontally  divided,  and  the  specific  parts 
so  created  —  the  stories,  floors,  and  cellars  —  were  held  by  dif- 
ferent persons  in  separate  ownership ;  this  being  associated,  as  a 
rule,  with  community  ownership  of  the  building  site  and  the 
portions  of  the  building  (walls,  stairs,  roof,  etc.)  that  were  used 
in  common.  Notwithstanding  that  this  peculiar  legal  institute 
was  totally  irreconcilable  with  the  alien  law  of  the  Reception, 
it  remained  part  of  the  law,  —  not,  however,  of  the  common 
customary  law,  for  which  reason  the  Prussian  "  Landrecht  "  and 
the  Austrian  and  the  Saxon  codes  refused  to  recognize  it.  It 
was  preserved  as  a  particularistic  legal  institution  in  many 
localities,  even  in  the  face  of  statutory  prohibitions,  especially 
in  Bohemia  and  South  Germany  :  in  Salzburg,  Munich,  AViirzburg, 
Regensburg,  in  Wiirttemberg  (to  a  quite  extraordinary  extent, 
according  to  Kuntze's  reports,  in  Wildbad),  Sachsen-]\Ieiningen, 
Frankfort,  and  above  all,  with  extraordinary  vitality  and  in  many 
cases  down  to  the  present  day,  in  Switzerland.  It  has  also  been 
expressly  recognized  by  the  Civil  Code.  A  particularly  clear 
example,  illustrating  the  law  as  it  stands  to-day,  is  afforded  by 
the  contract  concluded  in  1901  between  the  municipality  of  Frei- 
burg i.  Br.  and  the  Edifice  of  the  Holy  Virgin,  a  cathedral-building 
endowment  at  Freiburg,  for  the  purpose  of  determining  the  legal 
relations  existing  between  them  ;  by  which  contract  it  was  agreed 
that  the  cathedral,  together  with  the  spire,  should  be  registered  as 
the  property  of  the  cathedral-building  endowment ;  but,  as  to  the 
construction  plant  ("  Miinsterbauhiilte  "),  that  the  property  of  the 
yard  and  lower  story  should  be  registered  as  in  the  building-en- 
dowment, and  that  of  the  second  story  and  roof  as  in  the  city ; 
which  was  accordingly  done.^ 

The  Civil  Code,  however,  recognizes  the  Roman  principle  ac- 
cording to  which  fixtures,  as  component  parts  of  land,  necessarily 
follow  the  land  surface ;  and  has  therefore  not  recognized  in- 
de])cndent  property  in  i)uil(ling-stories.  The  Roman  principle 
applies  to  entire  buildings  when  they  are  actually  component  parts, 
and  so  holds  also  as  to  their  stories.  On  the  other  h:ind,  the 
Civil  Code  has  recognized  continuance  of  j)ro])erty  in  building- 

*  Stulz,  "  Das  Miinster  zu  Freiburg  i.  Ur.  iin  Lichte  rechtsgeschichtlicher 
Betrachtung"  (Address,  1901),  35,  8(). 

174 


Chap.  IV]  THINGS  [§  27 

stories  existing  at  the  time  it  became  effective  (EG,  §  128) .     The 
Swiss  Civil  Code  has  taken  the  same  position  (§  675,  2 ;  EB,  45). 

(C)  Finally,  the  medieval  law  attributed  to  the  products 
OF  THE  SOIL  —  trees,  grain,  fruits  —  a  separate  legal  existence ; 
often  treating  them,  even  before  their  severance,  as  chattels. 
Another  than  the  owner  of  the  soil  might  therefore  have  the 
right  to  harvest  them  (infra,  §  62).  In  the  State  systems,  as 
for  example  in  the  Prussian  "  Landrecht  ",  this  view  has  been 
preserved.  The  possibility,  not  infrequently  admitted,  of  a  sep- 
arate mortgaging  of  fruits,  which  has  also  been  recognized  in  the 
imperial  Code  of  Civil  Procedure  (§  810),  was  a  consequence  of 
the  same  principle. 

(3)  The  modern  law  has  for  the  first  time  sharply  distinguished 
the  conception  of  the  component  yaii,  ("  Bestandteil  ")  from  re- 
lated legal  institutes,  and  recognizes  as  a  component  part  "  that 
which  can  exist  without  alteration  of  its  nature  only  in  union 
with  another  definite  thing,  and  finds  in  this  its  indispensable  sup- 
port and  preservation."  ^  The  component  part  is  therefore  ab- 
solutely subject  to  the  legal  fortunes  of  the  whole.  The  Civil 
Code  has  gone  farther  than  this,  and  has  placed  beside  what  it 
designates  as  "essential"  component  parts  (§  93),  —  which 
correspond  to  those  of  the  common  law,  and  share  like  those  the 
legal  status  of  the  entirety,  —  so-called  "  non-essential  "  com- 
ponent parts.  These  are  likewise  only  parts  of  a  whole,  and  not 
themselves  specific  things  in  a  legal  sense,  but  at  the  same  time 
they  can  themselves  be  the  object  of  special  rights,  because  they 
can  be  separated  from  the  whole  without  the  destruction  or  es- 
sential change  of  either.  Non-essential  component  parts  are, 
for  example,  the  surface  portions  of  a  piece  of  land,  and  the  units 
of  a  mass  of  goods  ("  Warenmenge  "),  as  the  liters  contained 
in  a  cask  of  wine.  The  concept  of  non-essential  component  parts 
was  unknown  to  the  earlier  German  law.  Unlike  the  German 
Civil  Code  the  Swiss  Code  has  adopted  a  uniform  concept :  ac- 
cording to  its  definition  a  component  part  of  a  thing  is  "  that 
which  according  to  the  usage  of  the  locality  is  essential  to  its 
existence,  and  cannot  be  sepa  'a  ed  from  it  without  destroying, 
damaging,  or  altering  it  " ;  all  such  parts  belong  to  him,  as 
owner,  who  holds  the  property  in  its  entirety  (§  642). 

(IT)    Composite  Things  ("Sach\erl)indungen ").      (1)  Principal 

Thing  and  accessories.  —  Although  the  medieval  law  recognized, 

in  various  cases,  independent  rights  in  the  component  parts  of 

1  Regelsberger,  "Pandekteu",  I  (1893),  367. 

175 


§  27]  THE    LAW   OF   THINGS  [BoOK  II 

a  thing,  this  involved  —  when  judged  from  the  standpoint  of 
modern  theory  —  a  confusion  of  the  two  conceptions  of  component 
parts  and  accessories,  which  at  that  time  were  not  differentiated. 
The  law  of  to-day,  however,  draws  a  sharp  Hne  between  the  two. 
For  whereas  the  part  merges  in  the  principal  thing  ("  Haupt- 
sache"),  loses  its  individuality,  has  no  longer  as  such  a  legal 
status,  and  has  forced  upon  it  the  legal  quality  of  the  whole, 
the  accessories  or  appurtenances  ("  Zugehor  ",  "  Zugehorigkeit  " ; 
"  Xeben-",  "  Hilfssache  " ;  "  Pertinenz  ")  retain  their  inde- 
pendent quality  as  things.  They  stand  to  the  so-called  j)rincipal 
thing  in  a  relation,  however,  by  virtue  of  which  the  legal  fortunes 
of  the  latter  also  influence  them.  The  accessory  quality  of  a 
thing  depends  upon  its  appointed  economic  purpose,  which  is  to 
augment  the  utility  of  the  other  thing  with  which  it  is  connected. 
In  so  far  it  serves  that  other  or  principal  thing.  All  these  char- 
acteristics the  Civil  Code  enumerates  in  its  definition  of  accessories 
(§  97).  With  it  agrees  substantially  the  definition  adopted  by 
the  Swiss  Civil  Code  (§  644,  "  Zugehor  ")• 

A  sharply-defined  conception  of  appurtenance  was  lacking 
in  the  older  Germanic  as  in  the  Roman  law.  On  the  other 
hand,  accessories  played  from  the  very  earliest  thnes  a  far  more 
important  role  in  Germanic  law  than  in  the  Roman,  or  in  the 
law  of  to-day.  The  modern  concept  of  pertinence  is  only  a  faint 
shadow  of  the  old  Germanic  concept  of  appurtenances,  which 
—  with  most  immediate  and  particular  reference  to  land  —  had 
a  far  wider  range  of  application  in  practice  and  an  incomparably 
greater  importance  than  to-day.  The  appurtenance  relation 
appears  in  the  old  law  as  nothing  short  of  a  universal  formula 
with  which  results  were  obtained,  at  least  approximately  and  for 
practical  purposes,  which  we  attain  to-day  only  with  far  more 
artificial  creations.^     It  appeared  in  the  following  applications : 

(A)  The  most  important  appurtenance  relations  were  those 
in  which  chattels  werp:  appurtenant  to  land.  In  the  case 
of  rural  lands  these  included  all  objects  that  served  the  manage- 
ment of  the  estate,  the  entire  stock  of  the  estate,  especially  the 
utensils,  cattle,  provender,  manure ;  everything  that,  in  the 
phrase  of  the  old  documents  made  a  "  mansus  vestitus  ",  every- 
thing that  constituted  the  "  integritas  "  of  an  estate,  including 
the  serfs  permanently  settled  upon  the  land.  All  this  the  land- 
lord needed  for  the  utilization  of  the  estate;  his  seisin  of  the 
estate  covered,  therefore,  all  such  objects. 

'  Stutz's  essay  in  "Festgabe  fur  O.  Gierke"  (1911),  1188. 
176 


Chap.  IV]  THINGS  [§  27 

In  the  case  of  buildings  the  old  sources  laid  greatest  stress  upon 
the  close  connection  into  which  chattels  were  brought  with  the 
house.  An  oft-repeated  maxim  and  definition  ran,  that  all  should 
belong  to  the  house  that  was  "  earth-,  wall-,  rivet-,  or  nail-fast." 
No  distinction  was  here  made,  as  is  seen,  between  component 
parts  and  appurtenants.  But  here  also  it  was  necessary,  in  ad- 
dition, that  the  objects  thus  firmly  affixed  should  be  intended  to 
serve  the  economic  ends  of  the  principal  thing,  and  not  merely  as 
it  were  the  use  of  the  temporary  possessor ;  for  in  this  event  they 
would  be,  even  according  to  the  present  Civil  Code,  only  "  ap- 
parent component  parts."  On  the  other  hand  all  accessories  did 
not  need  to  be  firmly  affixed,  —  as  for  example  storm  windows, 
utensils  to  extinguish  fires,  cabinets,  tools,  the  armor  and  weapons 
that  must  be  kept  in  the  house,  the  artillery  in  forts,  etc.  As 
already  mentioned  (p.  167),  these  movable  accessories,  which  de- 
spite their  legal  union  with  the  land  did  not  lose  their  inherent 
chattel  qualities,  were  by  many  legal  systems  assimilated  to  land, 
and  themselves  subjected  to  the  principles  of  the  land  law.  Among 
modern  codes  it  was  so  with  the  Code  Civil  ("  immeubles  par  des- 
tination "),  and  in  less  degree  with  the  Prussian  "  Landrecht." 
The  idea  has  disappeared  from  our  law  in  recent  years.  Accord- 
ing to  the  Civil  Code  an  accessory  is  always  a  movable  thing,  and 
cannot  even  be  a  non-essential  component  part  of  a  principal 
thing  (§  97).  In  other  respects  the  Civil  Code  follows  the  old 
Germanic  law  (§  89,  Z.  2)  as  regards  accessories  of  rural  estates 
("  Landgiiter  ").  In  the  case  of  buildings,  on  the  other  hand,  all 
firmly  affixed  objects  are  component  parts,  and  what  is  more 
essential  parts  (§  94,  2) ;  so  in  particular  machines,  according 
to  the  holding  of  the  imperial  court.  This  interpretation  of  the 
law  leads,  it  must  be  confessed,  to  the  gravest  inconveniences, 
inasmuch  as  it  makes  impossible  a  reservation  of  title  by  the 
vendor  of  machines.  It  would  accord  with  the  view  of  the 
Germanic  law  to  classify  machines  with  "  apimrent  component 
parts."  ^  According  to  the  Civil  Code  the  conception  of  acces- 
sories is  applicable  only  to  such  loosely  attached  machines  and 
implements,  as  belong  to  a  building  that  is  permanently  adapted 
to  an  industrial  enterprise  (§  98,  Z.  1). 

(B)  Chattels  appurtenant  to  chattels  occur  in  the  modern 
as  they  did  in  the  old  law,  as  e.g.  cabinet  keys  and  furnishings  of 
ships. 

1  Krilckmann,  "  Wesentlicher  Bestandteil  und  Eigentumsvorbehalt" 
(1906). 

177 


§  27]  THE    LAW    OF   THINGS  [BoOK   II 

(C)  Lands  treated  as  appurten.ajstt  to  other  lands,  on  the 
other  hand,  were  a  pecuHarity  of  the  older  hiw  which  has  been 
abandoned  in  modern  times.  In  the  pertinence  formularies  of 
medieval  tlocuments  the  house,  the  homestead  ("  Hofstatte  "), 
the  estate  ("  Hof  "),  the  virgate  ("  Hufe  "),  etc.,  are  designated 
countless  times  as  the  principal  things,  as  accessory  to  which  are 
then  enumerated  the  "  campi  ",  "  agri  ",  "  prata  ",  and  the  shares 
in  the  common  lands  ("  Allmende  "),  —  the  "  marchis  ",  "  viis  ", 
"  silvis  ",  "  aquis  aquarumque  decursibus  ",  etc.  Similarly  the 
commonty,  apportioned  and  unai)i)ortioned,  was  regarded  as 
accessory  to  all  the  individual  estates  in  the  village,  or  to  the 
whole  village  conceived  of  as  a  unit.  The  estates  dependent 
upon  a  manor  were  equally  regarded  as  its  appurtenants.  These 
manifold  relations  of  dominant  and  servient  lands  disappeared 
with  the  decline  of  the  medieval  economic  and  social  order.  The 
treatment  of  particular  dependent  estates  ("  Nebengiiter  "), 
outlying  farms  ("  Vorwerke "),  etc.,  as  appurtenants  of  the 
principal  estate,  and  of  yard  and  garden  as  appurtenants  of 
the  house,  persisted  alone  down  into  modern  times.  The  Civil 
Code,  however,  has  declined  to  recognize  such  relations,  because 
the  conception  it  has  created  of  non-essential  component  parts 
here  interferes :  the  surface  portions  of  a  piece  of  land  can,  as 
such  and  in  relation  to  it,  be  made  the  objects  of  special  rights. 

(D)  Ri(iiiTS  AS  appurtenances.  Finally,  it  was  natural  for  the 
older  law  to  carry  over  the  quality  of  pertinence  from  corporeal 
to  incorporeal  things,  or  rights.  As  remarked  alcove  under  (C), 
along  with  the  allotted  portions  of  the  commonty  the  rights  of 
user  in  the  common  march  belonged  among  the  appurtenances  of 
the  individual  holdings.  This  of  itself  was  a  common  illustration 
of  the  treatment  of  rights  as  appurtenants.  We  meet  another 
no  less  common  and  important  instance  in  the  so-called  real 
rights  ("  Realrechten  ").  There  existed  in  the  Middle  Ages 
countless  rights  which  were  attached  to,  inherent  in,  definite 
pieces  of  land.  He  who  was  the  owner  of  certain  land  possessed 
by  virtue  of  that  fact  membership  rights  in  a  political  or 
economic  fellowship  ("  Genossenverband  "),  or  certain  industrial 
privileges ;  or  else,  a  point  j^articularly  characteristic  of  the 
medieval  period,  rights  of  a  public  character  —  rights  to  taxes, 
rents,  seigniorial  rights,  official  powers,  jwlitical  i)rivileges. 
Even  the  rights  and  dignities  of  the  menil)ers  of  the  diets 
("Landstandschaft")  and  of  the  estates  of  the  Empire  ("  Reichs- 
standschaft  ")   were   ordinarily  dependent    uj)()n  the  possession 

178 


Chap.  IV]  THINGS  [§  27 

of  certain  lands.  When  the  paternalistic  constitutional  ar- 
rangements of  the  Empire  were  done  away  with,  these  real  rights 
of  the  public  law,  which  the  Reception  had  left  in  the  main 
unimpaired,  were  for  the  most  part  swept  aside.  On  the  other 
hand  such  real  rights  have  maintained  themselves  down  to  the 
present  day  within  the  field  of  private  law  —  e.g.  industrial 
rights,  rights  of  ban,  chase,  fishery,  and  membership ;  real  servi- 
tudes, charges  on  land,  preferential  rights  of  purchase  ("  Xaher- 
rechte"),  etc..  The  Civil  Code  itself  recognizes,  among  real  rights, 
servitudes,  land  charges,  and  real  rights  of  sale;  besides  these 
there  are  many  regulated  by  State  law.  In  Mecklenburg  the 
political  real  rights  of  eligibility  to  the  local  government  and  the 
diet  are  still,  as  in  the  Middle  Ages,  associated  with  the  owner- 
ship or  tenancy  of  a  manor. 

Whereas  real  rights  in  the  older  law  were  appurtenants,  the 
present  Civil  Code  classifies  them  under  component  parts. 

All  the  principles  mentioned  above,  which  German  law  had 
already  developed  at  an  early  period  in  regulating  appurtenants, 
are  most  lucidly  explained  by  the  results  of  U.  Stutz's  latest  re- 
searches regarding  the  property  of  the  proprietary  ("  Eigen-  ") 
churches,  drawn  from  the  "  traditions  "  of  Freising  of  the  700  s 
and  800  s.^  As  these  documents  show,  the  establishment  of 
proprietary  churches  occurred  regularly  in  the  following  manner. 
The  founder,  —  after  the  ground  had  been  prepared,  the  church 
built,  and  the  altar  erected,  and  the  dedication  of  the  church 
had  taken  place, — made  a  tradition  as  to  the  church,  and 
only  after  that  was  the  property  conveyed  to  the  bishopric  of 
Freising.  In  this  act  of  tradition  there  was  involved  a  creation 
of  pertinence  ("  Pertinenzierung  "),  "  a  dedication  :  in  purpose, 
and  as  regards  at  least  part  of  the  revenues  in  actuality,  a 
delivery  of  property  for  ecclesiastical  purposes."  ^  The  ac- 
cessories with  which  church  or  altar  were  furnished  included 
the  furnishings  of  the  church,  the  parsonage,  the  roadway ;  also 
rights  to  the  ecclesiastical  revenues,  especially  the  tithes,  besides 
those  of  a  purely  temporal  nature.  All  these  appurtenants 
were  dependent  upon  or  accessory  to  the  principal  thing,  and 
that  was  the  church,  or  to  be  more  exact  its  great  or  high  altar. 
Such  a  creation  of  appurtenances  was  "  no  legal  transaction,  but 
simply  a  legal  act."  ^  "It  did  not  pass  ownership;  this  re- 
mained where  it  had  been.     No  subjective  right  was  by  it  either 

1  "Festgabe  fur  O.  Gierke",  1187-1268.  ^  75^^.^  1254. 

3  Ihid.,  1253. 

179 


§  27]  THE   LAW    OF   THINGS  [BoOK   II 

destroyed,  created,  or  conveyed,  for  only  orie  holder  of  rights  took 
part  in  the  act.  Only  the  objective  relations  are  changed.  The 
founder  undertakes  a  shifting  of  his  property  rights :  portions  of 
his  property  heretofore  disconnected  are  brought  into  dependence 
upon  each  other.  The  altar,  or  as  the  case  may  be  the  church 
edifice,  becomes  a  central  object  upon  which  the  rest  of  the  prop- 
erty thereto  conveyed  depends."  ^  "  Moreover,  these  proprietary 
churches,  with  their  property,  could  in  turn  themselves  be  ac- 
cessories;  namely,  of  a  manor  or  great  estate." ^  When  the  law 
respecting  pro])rietary  churches  was  later  replaced  by  a  law  of 
advowsons,  the  remnants  of  these  old  manorial  and  other  pro- 
prietary churches  were  preserved  as  ecclesiastical  ("dingliche 
Patronate  ") ;  and  since  the  latter  had  now  themselves  become 
subjects  of  legal  rights,  the  right,  in  place  of  the  thing,  became 
an  appurtenant.  Rights  of  presentation  are  still  known  to  the 
law  as  real  rights  of  public  law. 

(2)  Composite  things  {"  Gesamtsachen  ",  "  Sachinbegriffe  "). 
In  composite  things  there  is  not,  as  in  relations  of  pertinence,  a 
principal  and  a  subsidiary  thing.  There  are  several  independent 
things,  which,  in  accordance  with  custom  or  commercial  practice 
and  as  a  result  of  the  common  end  they  serve,  habitually  constitute 
a  unity ;  though  they  need  not  necessarily  appear  in  such  a  form. 
We  have  to  do  here  with  collections  ("  Zusammenfassungen  ") 
of  several  corporeal  things,  whether  individually  ascertained  or 
fluctuating  units.  Such  are  corporeal  group-things,  which  have 
been  familiar  to  Germanic  law  from  the  earliest  times,  —  cattle 
herds,  the  stock  of  an  estate,  a  stock  of  goods,  dowry,  warriors' 
accouterments,  etc.  But  the  law  went  further  and  made  such 
aggregates  of  incorporeal  things :  there  are  incorporeal  group- 
things.  It  thus  became  possible  to  deal  with  the  entire  property 
of  an  individual  as  a  unit,  and  to  develop  manifold  forms  of  special 
property  ("  Sondervermogen  "). 

Both  of  these  forms  of  group-things  played  an  important  prac- 
tical role  in  legal  life  already  in  the  Middle  Ages.  And  the  con- 
ception was  to  be  of  extreme  importance  in  the  future. 

Just  as  untold  numbers  of  Christians,  in  pious  zeal,  formerly 
gave  all  their  goods  and  chattels  to  church  or  cloister  at  their 
deaths,  or  as  the  entire  property  of  a  wife  could  pass  into  the 
seisin  of  her  husband  under  the  marriage  property  law,  so  the 
later  law  has  known  similar  things.  This  was  true  of  the  Prus- 
sian "  Landrecht  ";  and  under  the  Civil  Code,  as  well,  an  entire 
1  "  Festgabe  fur  O.  Gierke  ",  1242.  2  Ibid.,  1255. 

180 


Chap.  IV]  THINGS  [§  27 

estate,  or  a  definite  part  thereof,  viewed  as  an  entirety  or 
aggregate,  may  be  the  object  of  succession,  usufruct,  and  com- 
munity. 

The  important  concept  of  special  property  ("  Sondervermogen  ") 
appeared,  among  other  places,  in  the  separation  of  the  allodial  and 
the  feudal  estates,  and  of  the  trading  capital  of  the  merchant 
and  the  capital  of  shipping  partners  ("  Reeder  ")  from  their  other 
property.  Like  the  principle  of  pertinence  and  in  closest  con- 
nection therewith,  it  found  at  an  early  day  particularly  clear 
expression  in  the  law  of  the  proprietary  church.  When  the  lord 
or  proprietor  of  such  a  church  transferred  certain  lands,  chattels, 
and  rights  that  were  portions  of  his  free  property,  to  another  part 
of  his  property  which  was  "  bound  ",  because  grouped  about  the 
altar  dedicated  to  religious  service  and  bound  to  this  by  the  per- 
tinence relation,  he  thereby  created  within  his  estate,  considered 
as  a  whole,  a  separate  estate,  which  in  contrast  to  his  free  property, 
appeared  bound  not  only  by  a  special  purpose  and  dedication,  but 
as' a  property  mass  of  a  peculiar  legal  character,  namely,  as  church 
property.  Not  in  the  sense  of  an  ecclesiastical  allodium  ("  Eigen- 
gut  "),  since  it  remained  in  the  ownership  of  the  church's  pro- 
prietor ;  but  in  the  sense  of  a  holding  devoted  at  least  primarily 
to  the  use  and  profits  of  the  church.  It  was  therefore  subject 
to  ecclesiastical  restraints  on  alienation ;  that  is  it  could  no 
longer  be  released  from  its  objective  and  real  connection  with 
the  church  and  the  altar :  it  no  longer  stood  immediately,  but  only 
mediately,  in  the  ownership  of  the  lord.^  The  Freising  documents 
speak  explicitly  of  a  person's  "  church  property  "  ("  Kirchen- 
vermogen  "),  for  the}^  contrast  "  possessio  "  and  "res  ecclesias- 
tica"  with  "possessio  secularis"  and  "alia  hereditas."  Thus,  "as 
the  older  German  and  the  present-day  maritime  law  have  distin- 
guished property  on  land  ('Landvermogen')  and  at  sea  ('See-', 

*  Schiffsvermogen  '),  or  in  the  more  ancient  mining  law 
mining  from  town  property,  so  the  lord  of  a  proprietary  church 
possessed,  besides  his  secular  or  '  burghal '  property,  spiritual  or 

*  church  '  property.  This  consisted  of  the  church  —  an  ecclesi- 
astical enterprise  conducted  by  him,  as  it  were,  under  the  firm- 
name  of  the  Lord,  —  with  its  furnishings  and  ornaments,  the 
land  belonging  thereto,  and  the  rights  of  usufruct  and  revenues 
thereto  attached."  -  Li  the  modern  period  the  delimitation  of  a 
special  partnership  estat?,  particularly  the  special  estate  of  an 

1  Stulz  in  "  Festgabe  fiir  0.  Gierke",  1254,  1262. 

2  Ibid.,  1267. 

181 


§  27]  THE    LAW    OF   THINGS  [BoOK   II 

unlimited  partnership,  from  the  other  property  of  the  partners, 
lias  become  of  especial  importance.  A  separate  estate  recognized 
in  the  law  of  today  is  the  "  railway  unit  "  ("  Bahneinheit  ")  of 
the  Prussian  statute  of  August  19,  1895.^ 

The  scientific  literature  of  the  common  law  developed  from  these 
])henomena  of  legal  development  the  doctrine  of  the  "  universitates 
rerum  ",  which  were  divided  into  "  universitates  facti  ",  or  com- 
plexes of  corporeal  things  (lots,  heaps,  groups),  and  "  universi- 
tates iuris  ",  or  artificial  complexes  of  incorporeal  property  rights 
("  Vermogensinbegriflfe  ")•  This  theory  was  successfully  at- 
tacked as  inconsistent  with  the  Roman  sources.  An  attempt 
was  made  to  prove  that  the  whole  concept  of  group-things  ("  Ge- 
samtsachen  ")  was  vicious,  since  simple  things  alone  were  conceiv- 
able as  objects  of  rights.  This  "atomistic  idea  "  ^  however,  did 
not  prevail.  Both  corporeal  and  incorporeal  group-things  must 
be  recognized  even  under  the  present  law,  although  the  Civil  Code 
does  not  explicitly  mention  the  concept.  These  corporeal  things- 
aggregate  ("  Sachinbegriffe  ")  could  and  can  be  subject,  as  units, 
to  a  unitary  right  of  ownership,  usufruct,  or  pledge  ;  the  individual 
corporeal  things  remain,  however,  at  the  same  time,  independent 
objects  of  rights. 

No  similar  rules  of  law  have  been  formulated  for  incorporeal 
things-aggregate ;  but  that  a  unitary  right  may  exist  in  them,  as 
incorporeal  things,  is  not  impossible. 

1  On  the  concept  of  special  estates  ("Sondervermogen",  "Sondergut") 
see  also  Zitelmann,  "Sondergut  naeh  deutschem  Internationalprivat- 
recht",  in  ibid.  255-284,  255  ct  scq. 

2  Gierke,  "Privatrecht",  II,  51. 


182 


Chap.  V] 


THE   LAW    OF   LAND  :     POSSESSION 


[§2S 


Chapter  V 
THE   LAW  OF  LAND 


Part  I :  Possession 


§  28.    The  Medieval  Seisin  of  Land. 
I.    General  Course  of  De- 
velopment. 
IL   The  Term  "Seisin." 
III.   The  Requisites  of  Seisin. 

(1)  Cases    of   corporeal 

seisin. 

(A)  Actual  control. 

(B)  Mental       rela- 

tion. 

(2)  Cases      of  incorpo- 

real seisin. 

(A)  Release. 

(B)  Judgment       of 

court. 

(C)  Inheritance. 

(D)  Disseisin. 

(E)  Other  cases  of 

incorporeal 
seisin. 
IV.   The     Consequences     of 
Seisin. 

(1)  Its  defensive  aspect, 

—  protection  of 
actual  possession. 

(2)  Its    aggressive    as- 

pect, —  the  es- 
tablishment of 
possessory  rights. 

(3)  Its      "translative" 

action,  —    or    ef- 
fect    of     passing 
rights. 
V.   Citation  Seisin. 
VI.    Seisin     of     Incorporeal 
Things. 
VII.    Common     Qualities    of 
Medieval    Forms    of 
Seisin. 
§  29.    Influence  of  the  Alien  Law  of 
Possession. 
I.   The  Concept  of  Posses- 


§30. 


(1)  Seisin    and    posses- 

sion. 

(2)  Elements  of  posses- 

sion. 

(3)  Multiple        posses- 

sions of  one  thing. 

(4)  Possession  of  rights. 
II.  Acquisition  and  Loss  of 

Possession. 

(1)  Original  acquisition 

of  possession. 

(2)  Derivative   acquisi- 

tion of  possession. 

(A)  Corporeal     de- 

livery. 

(B)  Transfer        by 

juristic  act. 

(3)  Inlieritanee  of  pos- 

session. 

(4)  Positive       prescrip- 

tion. 

(5)  Loss  of  possession. 
III.  Protection    of     Posses- 
sion. 

(1)  The    Roman   inter- 
dicts. 

(2)  Important    changes 
in  these. 

{A)  In  the  "Inter- 
dictum  Uti 
possidetis." 

(B)  In  the  "  Inter- 
dictum  unde 
vi." 

(3)  Possessory  remedies 

of     the     German 
law. 
The  Land-registry  System. 
I.    The  ISIedieval  Law. 
II.     The   Modern   Develop- 
ment. 


§  28.    The    Medieval    Seisin   of   Land.^     (I)    General   Course   of 

1  Alhrccht,  "Die  Gcwcre  als  Grundlage  des  alteren  deutsehen  Sachen- 
rechts "  (1828) ;  Lahand,  "Die  vermogensrechtlichen  Klagen nach den siich- 
sischen  Rechtsquellen"  (18G9) ;  Heiisler,  "Die  Gewere"  {IS/ 2) ;  IJubcr, 
"Die  Bedeutung  der  Gewere  im  deutsehen  Sachenrecht",  in  the      Ecrner 

183 


§  28]  THE    LAW    OF   THINGS  [BoOK   II 

Development.  —  Nowhere  do  we  find  more  sharply  marked  than 
in  tlie  hiw  of  things  that  feature  which  abov^e  all  others  charac- 
terizeil  the  Germanic  medieval  law ;  namely,  the  endeavor  to 
give  a  tangible  embodiment  to  legal  relations  that  actually  existed 
only  in  the  human  mind.  All  real  rights,  ownership  as  well  as 
rights  of  more  limited  content,  rights  in  land  as  well  as  rights  in 
chattels,  appear  in  a  visible  form,  in  the  dress  of  a  so-called  "  seisin  " 
("  Gewere  ").  Seisin  was  therefore,  in  fact,  the  basis  of  the  medie- 
val law  of  things. 

This  "  sensuous  "  character  was  here  also,  originally,  merely 
the  expression  of  a  naive  attitude  of  mind,  which  could  recognize 
a  right  in  a  thing  as  present  only  where  there  was  some  visible 
relation  between  it  and  the  person  entitled  thereto.  Within  the 
domain  of  the  law  of  things,  and  especially  within  that  of  the  law 
of  land,  the  prominence  given  to  the  "  sensuous  element  ",  to  the 
formalism  that  demanded  for  every  right  a  physical  form  percep- 
tible by  the  senses,  was  of  the  greatest  value  in  the  later  develop- 
ment of  the  law.  It  rendered  possible  a  formulation  of  legal  rights 
in  the  soil  capable  of  adaptation  to  the  highly  complicated  eco- 
nomic gradations  of  the  time;  and  it  afi'orded  a  security  to 
transactions  affecting  land  that  could  scarcely  have  been 
maintained  by  a  more  abstract  regulation. 

In  the  law  of  land,  therefore,  the  fundamental  ideas  of  the  older 
law  were  not  abandoned,  but  on  the  contrary  were  retained  and 
further  developed.  The  modern  German  land-registry  law  is  a 
further  development  and  perfection  of  principles  that  were  first 
actually  applied  in  the  medieval  seisin  of  land. 

The  power  of  the  medie\al  Germanic  ideas  that  once  governed 
the  law  of  seisin  has  continued  to  be  felt  down  to  the  present  day, 
notwithstanding  that  that  conception,  as  an  independent  legal 

Festschrift  fiir  ITalle"  (1894);  Gierke,  "Die  Bedeutung  des  Fahrnis- 
besitzes  fiir  streitiges  Reeht"  (1897);  Herbert  Meyer,  "Eiitwerung  und 
Eisentum  im  deutschen  Fahrnisrefht"  (1902);  ^//"rer/ .S^c/n/Z/zp,  "Geriifte 
und  Marktkauf",  in  "Breslaiicr  Festgabe  fiir  Dalin",  I  (1905),  l-()3; 
and  "Puhlizitat  und  (Icwiilirsfhaft  im  doutsohcn  Fahrnisrecht",  in 
Iherincfn  .].  V,.,  XLTX  (190.")),  IfjO-lSd;  Ihrlxri  Meyer,  "Das  Puhlizi- 
tjitsprinzip  iin  doutschen  IjiirKcrliflicn  Kcclit ",  in  ().  Fischer's  "Abliand- 
lungen",  XVIII,  2  (1909);  Naendrupp,  "  Rcchtsehoinsforschuncfen,  Ht'ft 
2:  Die  Gewere-Thoorion "  (1910);  Biicklinq,  "Die  Woohschvirkiing 
gewercreRhtlieher  und  fronunf^srcftitlifhor  Elenionte  im  Liepenscliafts- 
refihte  des  deutschen  Mittclalters",  in /ieyerle's  "Bcitriige",  VI,  2  (1911); 
IIerf>erl  Meiier,  art.  "Besitz"  in  Hoop's  "  Roallexikon  der  pormanisclien 
Altertumskunde",  I  (1912),  2()l-2().').  — /'\  W.  M<ii(tn>id,  "The  Mystery 
of  Seisin"  (ISSfi),  republished  in  "Select  Essays  in  AnKlo-American 
Legal  History",  III  (1909),  .^)91-(il().  A.  (!.  Se'dc/wick  and  /''.  .S'.  Wait, 

"The  History  of  the  Action  of  Ejectment"  (188(3),  ibid.,  (ill-(>45;  0.  W. 
Holmes,  "Das  gemeine  Recht  Englands"  (1912),  208-249. 

184 


CilAP.  V]  THE    LAW    OF   LAND  :     POSSESSION  [§  28 

institute,  has  long  since  disappeared.  But  only  within  the  most 
recent  years  has  this  direct  and  simple  line  of  development  been 
understood.  Unusual  difficulties  had  to  be  overcome  before  the 
nature  and  importance  of  seisin  .became  plain.  Often  as  the 
medieval  sources  mention  seisin,  they  naturally  nowhere  give  a 
succinct  statement  regarding  it,  and  the  isolated  passages  bearing 
upon  the  question  in  documents  and  legal  monuments  are  often 
difficult  to  understand  and  contradictory.  Since  Albrecht's  cele- 
brated monograph  the  problem  of  seisin  has  been  the  center  of 
investigations  in  the  history  of  German  private  law.  Following 
his  contributions,  those  of  Laband  and  Heusler,  especially,  have 
cleared  the  way.  It  is  only  the  very  recent  investigations  of 
Huber,  however,  which  have  been  accepted  by  Gierke,  Herbert 
Meyer,  and  Alfred  Schultz,  that  have  resulted  in  a  clarification 
which  may  be  safely  regarded  as  the  definite  solution  of  at  least 
the  principal  riddles. 

(II)  The  Term  "Seisin"  ("  Gewere  ").  —  The  substantive 
"gewere",  "  gewer  ",  "were".  Old  High  G.  "  giweri  "  ("  gi- 
werida  "),  technically  used  in  medieval  legal  terminology,  is  derived 
from  the  verb  "  wern  ",  which  goes  back  to  the  Gothic  "  vasjan  ", 
Old  High  G.  "  werjan  ",  A.  Saxon  "  verjan  ",  and  means  "  to 
dress  "  or  "  clothe  " ;  corresponding,  thus,  both  etjTnologlcally 
and  essentially  to  the  Latin  "  vestire  ",  "  investire  ",  which  is 
used  in  the  I^atin  sources  in  its  place.  Accordingly,  "  clothing  " 
("  Einkleidung  ")  is  also  the  meaning  of  the  substantive  "gewere  " ; 
which  is  rendered  with  "  vestitura  ",  "  investitura  "  in  Latin. 

From  this  derivation  it  follows  that  "  Gewere "  has  noth- 
ing to  do  with  "  Wehr  ",  "  Gewehr  ",  —  defense,  weapon 
("  were  "  =  "  arma  ",  from  the  Gothic  verb  "  varjan"  ;  "  wern  ", 
=  "  prohibere  ",  "defendere  ") ;  nor  with  "  Gewahr  ",  —  warranty 
("  were  ",  "  gewere  "  =  "  prsestatio  ",  "  cautio  ",  "  Garantie  ", 
from  the  verb  "  wern  "  =  "  prsestare  "). 

The  expressions  "  wern  ",  "  vestire  ",  "  gewere  ",  "  vestitura  "  , 
found  their  first  known  application  in  designating  the  act  by  which 
the  control  over  a  piece  of  land  was  conveyed  in  a  legal  manner. 
This  act  (which  will  be  discussed  more  fully  in  §  34  infra)  was 
regarded  as  the  clothing  or  vesting  of  the  transferee  with  the 
thing,  the  piece  of  land.  The  residt  produced  by  such  investiture 
was  also  designated  by  the  same  word ;  so  that  thenceforth  the 
actual  control  itself  over  the  thing  was  known  as  seisin  or  investi- 
ture ("Gewere ",  " investitura ").  And  inasmuch  as  the  expression 
was  also  extended  to  the   control  over  chattels,  and  also   was 

185 


§  2S]  THE    LAW    OF   THINGS  [BoOK   II 

applied  to  those  eases  in  which  the  control  of  a  tiling  had  not 
been  acquired  by  transfer  from  or  investiture  by  another,  but 
was  original,  it  came  to  have  a  general  meaning  nearly  equivalent 
to  the  modern  term  "  possession  "  ("  Besitz  ").^ 

(Ill)  The  Requisites  of  Seisin.  —  If  we  now  look  at  the  law  of 
seisin  of  land  in  the  form  in  which  we  meet  it  at  the  time  of  its 
ripest  and  widest  development,  —  namely  in  the  age  of  the  Law 
Books,  —  our  first  question  must  be  :  when  is  there  seisin  accord- 
ing to  the  medieval  sources? 

Two  requisites  nuist  have  been  satisfied,  as  a  general  rule,  if 
seisin  was  to  be  recognized :  two  requisites  which  remind  us,  at 
least,  of  the  essentials  "  corpus  "  and  "  animus  "  of  the  Roman 
"  possessio."  The  cases  in  which  these  two  requisites  were 
present,  the  normal  and  uncontested  cases,  may  be  designated,  to 
follow  modern  writers,  as  cases  of  corporeal  ("leibliche")  seisin. 
Along  with  these  cases  there  were  a  few  others  in  which  one 
of  the  two  requisites  was  lacking,  but  in  which  the  sources 
none  the  less  recognized  seisin.  These  are  the  cases  known  to 
modern  scholars  as  incorporeal  ("ideelle")  seisin.  Their  explana- 
tion has  given  very  great  trouble.     We  will  discuss  first  the  former. 

(1)  Cases  of  Corporeal  Seisin.  —  (A)  The  first  requisite  was  that 
of  ACTUAL  CONTROL.  He  who  is  the  master  or  dominus  ("  Herr  ") 
of  a  thing  has  it  in  his  seisin,  has  seisin  in  it.  From  the  naively- 
sensuous  \'ie\vpoint  of  the  Middle  Ages,  however,  the  visible  sign 
of  dominion  over  a  piece  of  land  was  its  economic  enjoyment 
("  Nutzung  ").  Everybody  can  see  who  derives  the  profit  from 
an  estate  ;  who,  as  the  sources  say,  holds  it  "  for  money  and  profit  " 
("in  Nutz  and  Gelde")  and  exploits  ("utbort")  it.  That  per- 
son, therefore,  had  the  seisin.^  There  were,  however,  very  different 
forms  of  economic  usufruct.  The  case  in  which  the  owner  of  a 
landed  estate  cultivated  it  himself  or  by  his  servile  dependents 
was  by  no  means  the  ordinary  one  in  the  Middle  Ages.  It 
happened  countless  times  that  the  landowners  let  out  their  lands 
under  various  forms  of  tenancy  ("  Leihe  ").  With  respect  to 
them,  the  enjoyment  ("Nutzung")  lay  in  the  services,  rents,  and 
taxes,  that  were  rendered  them  by  tlie  tenants.  On  the  other  hand, 
vassals,  holders  of  benefices  ("Benefiziaten"),  renting  tenants 
("  Zinsleute  "),  usufructuary  lessees  ("  Pachter  "),  etc.,  farmed 

'  The  French  and  the  English  law  derived  their  technical  terms  equiva- 
lent to  the  CJennan  "Gewerc"  from  the  Old  (!.  verb  "sazjan"  (Latinized, 
"sacire")  =  to  set,  put  in  possession:   "saisiue",  "saisir";    "seisin." 

^"Riehtsteig  Landr. ",  26,  §  6. 

186 


Chap.  V]  THE   LAW   OF   LAND  :     POSSESSION  [§  28 

the  land  themselves,  and  so  enjoyed  the  profits  directly.  I'here 
resulted  from  this  a  circumstance  particularly  characteristic  of  the 
medieval  law,  —  the  possibility  and  the  exceedingly  common  oc- 
currence of  plural  seisins;  beside  the  superior  seisin  of  the  full 
owner,  who  had  surrendered  his  estate  to  another  for  cultivation 
and  received  from  the  latter  produce  from  the  land,  the  seisin  of 
the  renting-tenant  who  enjoyed  the  immediate  usufruct.^  To 
designate  this  immediate  seisin  the  expression  "  pure  "  ("  ledig- 
liche  ")  seisin  was  used,  while  the  designations  "  possessory  ", 
"  common  ",  or  "  simple  "  ("  hebbende  ",  "  gemene  ",  "  blote  ") 
seisin  were  equally  applicable  to  all  cases  of  usufruct. 

(B)  In  addition  to  the  physical  requisite  of  actual  control, 
that  of  enjoyment  comparable  to  the  "  corpus  possessionis  " 
of  the  Roman  law,  the  medieval  law  demanded  also  a  peculiar 
MENTAL  RELATION  of  the  usufructuary  to  the  thing.  If  a  lord 
gave  his  estate  for  management  to  a  steward,  who  of  course  was 
bound  to  deliver  the  whole  produce  to  his  master,  no  seisin 
was  conveyed  to  the  steward.  And  as  little  to  a  servile  tenant 
("  Knecht  ")  who  worked  on  the  estate  for  the  lord :  if  the 
tenant  was  ousted,  this  was  after  all  only  an  injury  to  the  seisin 
of  his  lord.  Evidently  it  never  occurred  either  to  the  steward 
or  to  the  servile  tenant  to  conduct  himself  otherwise  than  as 
the  mere  instrument  of  the  lord,  —  as  a  "servant  in  possession" 
in  the  sense  of  the  present  Civil  Code.  They  did  not  assert  an 
independent  right  in  the  land.  But  it  was  precisely  this  —  the 
assertion  of  a  real  right  to  a  thing  —  that  must  be  added  to  phys- 
ical control  if  there  were  to  be  seisin.  In  the  case  of  a  rentaler 
("Zinsmann"),  on  the  other  hand,  the  usufruct  of  the  estate  was 
conveyed  by  a  legal  act  from  the  owner  to  the  rentaler ;  and  in 
the  case  of  an  heir  the  possession  of  the  deceased  owner  descended 
upon  his  death  to  such  heir  according  to  the  rules  of  the  laws  of 
inheritance.  Both  could  justify  physical  control,  therefore,  by 
real  ("  dingliche  ")  rights,  ceded  to  them  or  otherwise  acquired : 
in  the  case  of  both  the  exercise  of  objective  dominion  might  appear 
as  the  exercise  of  subjective  rights. - 

There  was  yet  another  peculiar  circumstance  connected  with 
this  necessary  assertion  of  a  real  claim.  Suppose  that  in  conse- 
quence of  a  gift  of  land  a  lawsuit  resulted,  as  was  often  the  case. 
The  donee,  often  a  church,  demanded  of  the  donor  delivery  of  the 
land,  and  in  an  action  against  him  charged  him  with  unlawful 
possession  ("  malo  ordine  possides  ").     The  donor  replied  to  the 

'  "Sachs.  Lehnr.",  14,  §  1.  ^  Qierke,  "IMvatrecht",  II,  191. 

187 


§  2S]  THE    LAW    OF    THINGS  [BoOK   II 

comj)laint  that  he  had  retained  for  himself  a  Hfe  estate  in  the  land. 
If  judgment  was  rendered  in  favor  of  the  plaintiiY,  it  would  be  a 
decision  that  the  defeated  donor,  who  had  theretofore  enjoyed 
physical  control  and  had  believed  himself  entitled  thereto,  had  in 
truth  not  been  so  entitled.  Nevertheless,  he  was  regarded  as 
having  seisin  up  to  the  moment  that  the  error  of  his  ass?rtion,  its 
inconsistency  with  the  positive  law,  was  shown ;  that  is  until  the 
pronouncement  of  the  judgment  of  the  court  against  him.  His 
seisin  was  lost  only  through  the  judgment.  He  might  still  retain 
his  actual  dominion.  From  this  it  follows  that  it  was  not  abso- 
lutely necessary  that  every  assertion  of  a  real  right  should  corre- 
spond, under  all  circumstances,  to  an  objective  legal  right.  Or 
more  exactly,  no  preliminary  inquiry  was  made  whether  it  so  cor- 
responded or  not.  The  identity  of  the  subjective  right  claimed 
and  the  objectively  existing  right  was  assumed  throughout,  pend- 
ing evidence  to  the  contrary.  Seisin  could  therefore  be  attributed, 
pending  further  evidence,  to  one  who  set  himself  up  as  heir  with- 
out being  such.  On  the  other  hand,  so  soon  as  doubt  was  thrown 
upon  such  alleged  right  by  one's  opponent,  he  must  pro\'e  the 
same,  if  he  Avished  to  defend  his  seisin.  If  he  could  not  do  so  his 
seisin  was  lost.  The  mere  allegation  of  a  purely  subjective  right, 
such  as  was  the  Roman  "  animus  domini  ",  was  therefore  insuffi- 
cient :  the  will  of  the  person  seised  must  have  "  absorbed  ",  as 
Huber  puts  it,^  an  element  of  objective  right.  The  right  alleged 
must  be  consistent  with  the  objective  right,  if  he  were  to  be 
secure  when  obliged  to  defend  his  seisin  against  attack. 

It  follows  from  what  has  been  said  that  this  will,  so  constituted, 
was  in  no  way  directed  toward  the  possession  of  the  thing  in  ques- 
tion as  by  an  owner.  This  was  a  further  and  obvious  ditt'erence  as 
compared  with  the  Roman  "possessio",  because  to  this  there  was 
ordinarily  essential  besides  the  "corpus"  an  "animus  domini", — 
i.e.  the  will  to  possess  the  thing  as  owner;  for  which  reason  the 
possession  of  an  owner  was  regarded  in  Roman  law  as  the  normal 
case  of  "  possessio."  In  the  medieval  hnv,  on  the  other  hand,  it 
was  sufficient  if  there  was  a  will  to  control  a  thing  upon  tlie  basis 
of  any  legal  right  whatever;  so  that  he  wlio  claimed  a  right  and 
was  minded  to  take  the  profits  from  tlic  land  as  usufructuary 
lessee  ("Ptichter"),  pledgee,  etc.,  had  the  seisin.  This  could  not 
be  otherwise,  inasmuch  as  the  medieval  law,  as  we  have  seen, 
allowed  a  plurality  of  seisins  in  the  same  piece  of  land,  - —  pro- 
prietary, feudal,  rental,  or  pledge  seisin.  This  gradation  of  dif- 
'  Huber,  op.  cil.,  42. 
188 


Chap.   V]  THE    LAW    OF   LAND  :     POSSESSION  [§  28 

ferent  seisins  one  upon  the  other  was  the  legal  expression  of  the 
manifold  actual  possessory  relations  to  the  soil  that  were  peculiar 
to  the  ^Middle  Ages.  We  meet  it  in  France,  in  Germany,  and 
in  England.  It  is  true  that  the  sharp  definition  of  all  these 
distinctions  was  only  gradually  attained  in  the  case  of  tenancies 
held  under  feudal,  servitary  and  manorial  law.  This  was  because 
in  their  case,  —  at  least  as  regarded  the  Territorial  law,  and  conse- 
quently also  in  the  ordinary  courts,  —  only  the  lord  of  the  vassals, 
servitors  and  serfs  was  at  first  regarded  as  the  owner,  possessed 
of  the  seisin  of  the  land  let ;  whereas  for  tenants  seisin  had  a  legal 
existence  only  under  the  feudal,  servitary,  and  manorial  law, 
because  recognized  as  such  in  the  feudal,  servitary,  and  manorial 
courts  alone.  Only  gradually  did  the  relations  of  the  feudal, 
servitary  and  manorial  law  find  recognition  in  the  ordinary 
courts  of  the  land  ("  Landgerichten ")  and  only  then  did  such 
rights  of  tenancy  receive  also  the  character  of  seisins,  albeit  lim- 
ited seisins,  under  the  law  of  the  land  ("landrechtlich  ").  In  the 
Territorial  law,  however,  there  had  also  existed  several  seisins 
beside  or  above  one  another  whenever  lands  were  let  as  free 
fiefs — heritable,  for  life, -or  for  years ;  or  rights  to  life  rents  created, 
trust  relationships  established,  the  property  of  wards  given  to 
guardians,  etc.  For  example,  in  the  early  Frankish  "  affatomie  " 
one  who  for  lack  of  relatives  entitled  to  inherit  desired  to  appoint 
an  heir,  conveyed  his  property  to  a  fiduciary,  the  "Salmann  ",  and 
conferred  upon  him  a  seisin  therein  in  order  that  he  might  turn 
it  over  to  the  selected  heir  after  the  death  of  the  testator.  So 
also  in  the  numerous  cases  in  which  the  donor  of  property  given 
to  a  church  or  cloister  retained  a  life-interest  or  usufruct,  and 
therewith  the  rental  seisin  ("  zu  Leiherecht  ") ;  but  on  the  other 
hand  recognized  the  ownership  of  the  chosen  institution  by  giving 
a  nominal  rent ;  the  acknowledgment  of  rent,  in  any  mode  what- 
ever, being  a  means  frequently  adopted  for  the  creation  of  seisin.^ 
So  also  in  the  case  of  freeholds  of  inheritance,  of  precaria  for 
definite  periods,  of  numerous  leaseholds  for  years,  etc.  Wherever, 
as  in  such  cases,  multiple  seisins  existed,  they  were  the  expres- 
sion of  rights  in  the  economic  returns  of  a  single  piece  of  land 
simultaneously  inherent  in  several  persons. 

(2)  Cases  of  Incorporeal  Seisin.  —  Besides  the  ordinary  cases  of 

seisin  of  lands  thus  far  discussed,  which  united  both  requisites  and 

indicia  of  the  seisin-concept,  namely  actual  control  (user)  and  the 

assertion  of  a  real  right  underlying  this,  there  existed,  as  already 

i"Swsp."  (G),  22. 

189 


§  28]  THE    LAW    OF   THINGS.  [BoOK   II 

mentioned,  a  few  otliers  in  which  one  of  those  two  characteristics, 
namely  physical  dominion,  was  absent ;  notwithstanding  which 
seisin  was  assumed  to  be  present  according  to  the  uniform. testi- 
mony of  the  medieval  sources.  Such  cases  are  classed  together  by 
modern  students  as  cases  of  "  ideal  ",  "  juristic  ",  or  "  incorporeal  " 
seisin.  Since  Albrecht  these  have  been  the  subject  of  various 
attempted  explanations.     These  cases  were  the  following : 

(A)  Release  or  surrender  ("  Auflassung  ").  This  was  the 
legal  act  by  which  the  transfer  of  a  piece  of  land  was  ordinarily 
efTected  in  the  INIiddle  Ages  (see  §  34  infra,  for  details).  It  con- 
ferred seisin  upon  the  grantee  though  no  instatement  in  physical 
possession,  or  investiture,  took  place.  Accordingly,  he  might 
thenceforth  take  forcible  possession  of  the  land  himself,  or  in  case 
the  release  had  been  made  in  court  might  accept  a  judicial  induc- 
tion. But  he  already  had  the  seisin  from  the  moment  of  the  sur- 
render.^ 

(B)  Judgment  of  court  also  conferred  seisin  upon  the  person 
held  to  be  entitled  thereto.  By  force  of  the  judgment  the  seisin 
passed  directly  from  the  losing  party  who  had  theretofore  held  it, 
to  the  successful  party  ;  and  he  too  might  thereupon,  and  without 
further  warrant,  reduce  the  land  to  his  physical  control. 

(C)  Inheritance  passed  the  seisin  of  lands  directly  from  the 
testator  to  his  heir:  the  testator  by  his  death  "abandoned" 
the  estate,  and  "released"  it  to  his  heir;  or,  as  men  said  in 
the  Netherlands,  had  "  opened  the  door."  Hence  the  legal  prov- 
erbs that  characterize  this  leading  principle  of  the  Germanic 
law  of  inheritance :  "  the  dead  man  makes  the  living  his  heir  ", 
"the  dead  man  seizes  the  living  ",  "the  seisin 'of  the  dead  man 
descends  to  the  living  "  ("  Der  Todtc  erbt  den  Lebendigen  ", 
"  le  mort  saisit  le  vif  ",  "  saisina  defuncti  descendit  in  vivum  ", 
—  cf.  infra,  §  103).  And  this  was  true  even  when  a  stranger  had 
acquired  physical  dominion  over  the  land  by  force,  after  the  death 
of  the  testator.  Such  a  stranger  had  no  seisin,  inasmuch  as  his 
assertion  that  he  was  entitled  thereto  i)roved  false  {supra,  I,  B). 
This  defect  was  more  material  than  that  of  ])hysical  control, 
which  did  not  prevent  seisin  by  descent.^ 

(D)  Disseisin  ("Entwerung").  — F'inally,  seisin  also  continued 
when  a  person  in  the  enjoyment  thereof  had  been  put  out  of 
possession  by  forcible  or  otherwise  illegal  disseisin.  The  one  thus 
forcibly  dispossessed  was  regarded  as  still  in  possession,  and  the 

»  Sachs.  Lehnr.,  39,  §  3. 
a  Sachs.  Lohnr.,  (i,  §  1. 

190 


Chap.  V]  THE   LAW   OF   LAND  :     POSSESSION  [§  28 

act  of  violence  as  a  circumstance  without  prejudice  to  his  seisin  :  ^ 
"  one  of  the  strongest  of  legal  fictions  in  the  face  of  actual  condi- 
tions, and  one  of  the  proudest  expressions  of  the  power  of  right 
against  all  attacks  upon  its  sacred  character  and  its  inviolability."  ^ 

The  reason  why  the  medieval  law  assumed  seisin  in  these  four 
cases  notwithstanding  that  actual  control  was  lacking,  —  because 
it  had  either  (as  in  cases  A,  B,  and  C)  not  yet  been  acquired,  or 
(as  in  case  D)  had  been  lost,  —  one  may  now,  thanks  to  the  light 
of  Ruber's  and  Gierke's  researches,  venture  definitely  to  state. 
As  will  be  later  explained  in  more  detail,  legal  relations  to  the  soil 
were  subjected  from  the  earliest  period  of  the  Middle  Ages  to 
requirements  of  publicity,  in  accordance  with  Germanic  legal 
notions.  Like  the  primitive  apportionment  of  the  common  arable 
to  individuals  by  lot,  all  legal  transactions  in  lands  were  later  per- 
formed in  public.  The  legal  relations  of  the  inhabitants  to  the 
individual  pieces  of  land  were  assumed  to  be,  and  were  known  to 
everybody.  One  and  all  found  expression  in  seisin ;  every  seisin 
was  based  upon  an  act  of  vesture,  "  investitura  " ;  and  this  act 
was  a  public  one.  Every  seisin  rested  "  upon  the  force,  sanctioned 
by  law,  of  an  appeal  to  common  knowledge."  ^ 

How  great  was  the  importance  attributed  to  the  visibility  of  the 
conferment  of  seisin,  was  shown  by  the  custom,  peculiar  to  the 
older  law,  of  the  so-called  "  sessio  triduana  " :  in  those  cases,  in 
which  a  donor  received  back  the  usufruct  of  the  land  of  which 
he  made  a  gift,  so  that  there  was  no  recognizable  external  change 
of  legal  relations,  the  donee,  after  the  ownership  and  therefore 
the  proprietary  ("  Eigen-  ")  seisin  had  been  transferred  to  him, 
was  bound  to  move  onto  the  land,  and  there  exercise  for  three 
da}'S  actual  dominion.  If,  after  the  expiration  of  this  period, 
the  donor  again  entered,  his  altered  legal  status,  namely  the  trans- 
formation of  his  proprietary  into  a  rental  seisin,  had  nevertheless 
been  made  apparent. 

A  judicial  release  of  seisin  perfected  without  investiture,  a 
judgment  of  court  declaring  the  seisin,  and  likewise  an  inheri- 
tance of  seisin,  had,  as  regards  publicity,  exactly  the  same  value 
as  an  investiture.  The  only  difference  was  that  in  the  case 
of  release,  court  decree,  and  inheritance,  only  the  fact  which  was 
the  cause  of  the  change  of  rights  was  made  visible,  but  in  the  case 
of  investiture  the  altered  conditions  produced  by  that  change,  as 
well.      But  this  difference  was  immaterial,  for  even  in  investi- 

*  Schwab.  Lehnr.,  96.  ^  Heusler,"GewQTe'\2GQ. 

^Gierke,  "Fahrnisbesitz",  3. 

191 


§  28]  THE    LAW    OF   THINGS  [BoOK   II 

ture  the  decisive  thing  was  the  piibHc  nature  of  the  voucher. 
And,  finally,  in  cases  of  violent  dispossession  an  event  was  in- 
volved which,  when  land  was  in  question  could  but  rarely  be 
screened  from  publicity ;  so  that  such  ])ublic  breach  of  right 
could  not,  in  itself,  have  the  effect  of  destroying  the  right. 
There  was  therefore  good  reason  for  disregarding,  in  these 
cases,  the  requisite  of  actual  control,  and  for  ascribing  seisin  to 
one  who  did  not  enjoy  such  control. 

(E)  In  addition  to  these  four  cases  of  incorporeal  seisin,  there 
were  still  a  few  other  cases  in  which,  according  to  the  theory 
of  the  sources,  seisin  was  present,  notwithstanding  that  after 
it  had  been  so  created  and  made  evident  by  an  act  publicly 
performed,  there  was  an  absence  of  every  other  external  token 
of  seisin.  Though  the  superior  proprietary  seisin  of  the  lord 
usually  received  expression  in  dues  and  services,  cases  occurred 
in  which  the  proprietary  seisin  of  the  grantor  was,  at  least 
temporarily,  wholly  subordinated,  and  did  not  even  continue 
to  be  recognized  by  a  nominal  rent.  Gierke  speaks  ^  in  such 
cases  of  "  dormant  "  ("  ruhende  ")  seisin.  This  existed  in  the 
dowser  ("  Leibzucht  ")  that  was  set  apart  for  a  woman  when  she 
married,  but  which  became  available  only  after  the  death  of  her 
husband ;  in  the  usufruct  which  a  donor  reserved  to  himself,  it 
might  be  for  life,  in  the  land  he  gave  away,  without  making 
provision  for  a  rent  in  favor  of  the  donee,  who,  through  a  gift 
perfected  by  judicial  surrender  had  acquired  ownership  and  seisin  ; 
likewise  when  a  debtor  gave  land  in  gage  to  his  creditor,  thereby 
conveying  to  him  the  pledge-seisin  therein,  leaving  his  own  pro- 
prietary seisin  thenceforth  wholly  without  external  indicia,  pend- 
ing redemption.  In  such  a  case  the  owner  had,  in  the  language 
of  the  sources,  simply  the  reversion  ("  Anfall  ") ;  that  is,  upon 
the  elimination  of  that  other  seisin  which  barred  him,  his  own 
seisin,  till  then  existent  but  invisible,  immediately  revived. 

Similarly  in  the  case  of  a  so-called  seisin  in  expectancy  ("  an- 
wartschaftliche  Gewere  "),  —  a  seisin  conveyed  upon  a  condition, 
upon  the  happening  of  which  it  should  first  become  effective,  or 
upon  the  happening  of  which  it  should  determine.  For  example, 
when  a  "  donatio  post  obitum  "  was  made,  the  donee  acquired 
seisin  immediately  by  means  of  a  present  transfer  taking  the  form 
of  release  with  investiture  ;  ther(>fore  there  was  no  need,  after  the 
donor's  death,  of  the  additional  act,  no  need  of  an  induction  into 
possession ;  but  the  seisin  acquired  legal  effect  only  with  the 
»"Privatrocht",  II,  200. 
192 


Chap.  \]  THE   LAW   OF   LAXD  :     POSSESSION  [§  2S 

happening  of  the  condition  (here  precedent),  —  namely,  the  death 
of  the  donor.  And  similarly,  and  above  all,  in  the  case  of 
the  seisin  of  a  pledgee,  who  was  given  a  junior  gage  in  land 
(infra,  §  53). 

It  is  true  that  cases  of  incorporeal  were  distinguished  from 
those  of  dormant  and  expectant  seisin  in  their  effects.  The  latter 
forms  were  without  any  effect  until  the  happening  of  the  event 
which  determined  another  person's  corporeal  seisin,  which  had 
temporarily  kept  them  in  the  background.  With  the  happening 
of  the  condition  they  acquired  against  all  third  parties  the  absolute 
validity  of  a  corporeal  seisin.  An  incorporeal  seisin,  on  the  other 
hand,  was  effective  from  the  instant  of  its  creation,  but  in  all  cases 
it  was  effective  in  but  a  single  very  definite  respect.  It  assured 
to  him  who  enjoyed  it,  in  particular  cases,  simply  a  legal  right  as 
against  one  who  had  released  the  seisin,  or  one  who  was  judicially 
decreed  to  give  investiture,  or  one  who  was  not  an  heir,  or  a  dis- 
seisor; that  is  to  say,  a  right  against  persons  who  had  retained, 
or  who  had  acquired  corporeal  seisin  or  physical  dominion,  but 
not  against  strangers  to  the  seisin.  As  against  such  third  parties 
those  persons  who  held  the  physical  dominion  were  regarded 
as  entitled  to  retain  possession.  Such  incorporeal  seisin  was 
therefore  also  known  as  "  relative."  It  prevailed  only  as 
against  a  corporeal  seisin  which,  at  the  outset,  had  existed 
simultaneously  with  it.  We  are  thus  led  to  the  consequences 
of  seisin. 

(IV)  The  Consequences  of  Seisin :  (1)  Its  Defensive  or  Vindicative 
Aspect  ("  Defensivwirkung  "  =  Huber,  "  Wirkung  der  Rechtsver- 
teidigung"  =  Gierke),  in  protection  of  actual  possession.  As  we 
have  seen,  it  was  the  rule  that  every  seisin  was  a  cloak  for  a  real 
right  in  land.  Only  in  those  exceptional  cases  in  which  the  law 
recognized  an  incorporeal  seisin,  was  it  otherwise.  But  the  medie- 
val law  took  account,  at  first,  of  the  typical  cases  only.  From 
seisin  men  implied  a  right  embodied  within  it.  The  actual  cir- 
cumstances of  possession  were  regarded  as  "  prima  facie  "  evidence 
of  a  legal  right.  It  was  therefore  forbidden  to  disturb  such  pos- 
session by  force,  i.e.  otherwise  than  by  way  of  judicial  action ; 
and  every  person  who  enjoyed  seisin  was  allowed  to  defend  him- 
self against  such  disturbance  by  self-help,  and  in  case  of  neces- 
sity by  the  use  of  force.  In  the  capitularies,  in  the  Territorial 
Peaces  ("  Landfrieden  "),  in  the  town  laws,  as  well  as  in  the  Law 
Books,  it  is  repeatedly  declared  that  no  one  may  be  disseised, 
unless  it  be  by  law  when  "  broken  "  by  a  judgment  after  just 

193 


§  28]  THE    LAW    OF   THINGS  [BoOK   II 

complaint.'  Such  a  protection  of  the  actual  possessory  status 
was  indispensable  to  the  preservation  of  the  peace  of  the  land. 

It  is  true,  as  we  have  seen  above  under  (III),  that  the  le<:;al 
basis  presumed  to  underlie  every  case  of  actual  possession  might 
be  questioned ;  the  seisin  could  be  attacked  by  an  action  at  law. 
Against  such  an  attack  in  the  courts  the  seisin  must  be  defended 
"  with  the  weapons  of  the  law  ";  a  reliance  upon  actual  posses- 
sion was  no  longer  sufficient.  If  a  defendant  in  actual  enjoyment 
of  seisin  wished  to  succeed,  he  must  prove  now,  in  addition  to  the 
fact  of  possession,  the  rightfulness  of  his  seisin  ;  and  if  such  a  right 
were  also  claimed  by  the  plaintiff,  his  better  right.  If  he  failed  in 
this,  then  his  seisin  was  "  broken  ",  for  the  absence  was  revealed 
of  the  supporting  right  theretofore  assumed  in  his  favor.  But  — 
and  here  the  advantage  that  was  given  by  actual  dominion,  by 
seisin,  was  seen  also  in  the  case  of  an  action  at  law  —  his  status 
was  that  of  a  defendant ;  which,  according  to  Germanic  procedure 
signified  that  he  had  the  advantage  of  proof,  he  "  stood  the 
nearer  to  "  the  proof.  In  the  Germanic  law  of  procedure  it  was 
regarded  as  an  advantage  to  go  to  the  proof  ;  whereas  in  the  Roman 
law  of  procedure  that  party  was  regarded  as  procedurally  favored 
who  could  wait  until  his  opponent  brought  proof  of  the  right  he 
asserted.  The  position  of  defendant  was  therefore  always  the 
more  favorable  —  in  the  Roman  law  because  he  did  not  need  to 
prove  anything,  and  in  Germanic  law  because  he,  and  not  the 
complainant,  had  the  first  right  to  make  proof.  Seisin,  then^ 
secured  to  him  who  enjoyed  it  the  role  of  defendant  in  a  lawsuit 
about  to  begin,  and  thus  the  advantage  of  proof." 

As  the  court  records  of  earlier  times  clearly  show,  this  lawsuit 
was  always  begun,  when  the  plaintiff  lacked  the  seisin,  with  an 
averment  in  his  complaint  that  the  defendant  possessed  wrong- 
fully ("  malo  ordine  possidet  ").  Perhaps  a  relative  of  the  donor 
alleged  that  a  usufruct  had  been  appointed  to  him  in  lands  given 
to  a  church ;  and  after  the  donor's  death,  from  which  the  usu- 
fruct was  to  date,  he  brought  action  against  the  church,  which  had 
taken  possession  of  the  estate  and  denied  his  right.  And  thus 
the  contest  and  the  proof  turned  tliroughout  upon  the  point 
whether  the  defenflant  had  or  had  not  been  entitled  to  the  enjoy- 
ment of  seisin.  Against  the  naked  allegation  of  the  plaintiff  the 
defendant  defended  himself  with  his  oath,  swearing  that  his  seisin 

'  For  example  the  Sachs.  Lehnr.,  38,  §  4.     In  England  this  rule  was 
adopted  even  in  the  Magna  Charta  of  1215. 
2  Schwab.  Lehnr.,  10  b. 

194 


Chap.  V]  THE   LAW   OF   LAND  :     POSSESSION  [§  28 

had  been  rightful.  If  the  plaintiff  appealed,  himself,  to  a  right 
existing  in  his  favor,  then  the  defendant  must  prove  the  right 
which  he  on  his  side  asserted.  The  attack  upon  the  seisin  was 
therefore,  in  truth,  an  attack  upon  the  right  that  was  manifested 
in  the  seisin.  The  trial,  therefore,  made  form  and  substance 
identical.  The  protection  first  accorded  to  actual  possession  as 
such  thus  became  a  protection  of  the  underlying  right,  since  it 
made  it  easier  for  the  person  having  seisin  to  establish  his  right. 
But  this  protection  accorded  to  seisin  found  application  not  only 
in  cases  of  corporeal,  but  also  in  those  of  incorporeal  seisin :  it 
was  precisely  here  that  the  great  practical  importance  of  "  rela- 
tive "  seisin  appeared.  The  particularly  frequent  case  of  forcible 
dispossession  was  the  most  important  in  this  connection.  The 
seisin  of  one  forcibly  disseised  was  (as  has  been  remarked) 
considered  as  continuing  notwithstanding  that  his  physical  do- 
minion had  been  actually  destroyed.  In  order  to- have  the  benefit 
of  this  assumption  it  was  incumbent  on  him,  in  the  first  place,  to 
establish  the  fact  of  the  forcible  disseisin,  which  was  required  to 
be  done  by  two  witnesses.  Thereupon  the  seisin  of  which  he  had 
been  deprived  was  awarded  to  him  by  a  judgment  commanding 
its  present  holder  to  put  the  disseisee  again  in  enjoyment  thereof. 
If  now  the  defeated  holder  of  the  corporeal,  albeit  defective,  seisin 
—  who  was  either  the  disseisor  himself  or  his  legal  successor  — 
made  claim  on  his  part  to  a  right,  the  advantage  of  the  defendant's 
position,  the  advantage  of  proof,  remained  nevertheless  with  the 
disseisee  as  in  ordinary  cases,  notwithstanding  that  he  was  the 
formal  plaintiflF.  True,  this  advantage  was  his  only  for  a  limited 
time :  he  must  bring  action  within  a  year  and  a  day  against  the 
disturber  of  his  seisin.  Otherwise  he  lost  his  rights  by  silence 
and  the  defective  seisin  of  the  disseisor  was  cured  of  its  defect ;  so 
that  if  the  disseisee  should  still  demand  of  him  possession,  the  dis- 
seisor, and  not  as  before  the  disseisee,  could  make  effective  in  his 
favor  the  advantages  of  seisin,  —  that  is  would  be  the  nearer  to 
the  proof.  This  limitation  as  to  time  upon  the  effect  of  a  rela- 
tive seisin  is  explained  by  the  purpose  it  was  to  serve ;  namely, 
to  put  an  end  as  quickly  as  possible  to  violent  interferences  with 
actual  possession.  If,  however,  the  complaint  was  brought  within 
the  proper  period,  then  evidently  the  decision  of  the  court  upon 
the  fact  of  the  disseisin  alleged  by  the  disseisee  and  subjected  to 
proof, — a  decision  turiiing  upon  a  pure  question  of  fact,  and  com- 
manding that  the  plaintiff'  be  reinstated  in  the  seisin,  simply  and 
solely  because  he  had  it  before,  —  established  at  the  same  time 

195 


§  28]  THE   LAW   OF  THINGS  [BoOK  II 

the  proper  procedural  relation  of  the  parties  in  the  contest  about 
the  right  itself.     It  was,  as  it  were,  a  medial  judgment  in  the  suit, 
which  itself  turned  upon  an"  issue  of  right.      Not  infrequently 
effect  was  given  to  the  judgment  by  an  actual  surrender  of  the 
seisin  to  the  disseisee  in  accordance  therewith,  so  that  the  latter 
received  not  only  the  procedural  advantages  associated  with  seisin, 
but  at  the  same  time  reacquired  the  seisin  itself.     In  many  in- 
stances the  trial  must  then  have  come  to  an  end ;   namely,  when- 
ever the  disseisor  was  not  himself  in  a  position  to  assert  and  prove 
a  legal  justification  for  his  act.     Otherwise  the  suit  would  go  on. 
If  the  action  ended  with  the  return  of  the  seisin  to  the  disseisee 
following  such  a  medial  judgment,  it  appeared  as  if  only  the 
questions  of  fact,  as  to  the  enjoyment  of  seisin  and  the  act  of  dis- 
seisin, had  been  passed  upon  ;  and  if  the  action  was  continued  after 
actual  reinstatement  of  the  disseisee,  the  procedure  fell,  formally, 
into  two  distinct  parts  in  the  first  of  which  the  question  of  fact 
was  adjudged,  and  in  the  second  the  question  of  law.     In  reality, 
however,  those    cases    in   which   the    action    ended    with  rein- 
statement following  a  judgment  that  commanded  restitution  were 
merely  "  uncompleted  actions,  which  had  been  abandoned  during 
a  preliminary  stage  of  the  proceedings  touching  the  right  to  posses- 
sion during  the  trial."  ^      And  the  other  cases,  where  further  litiga- 
tion followed  the  reseisin,  were  but  simple  actions  in  which  for 
the  present  only  the  position  of  the  parties  had  been  determined ; 
the  result  beijig  the  same  when  no  actual  reinstatement  in  seisin 
took  place,  but  the  action  was  continued  without  it  in  accordance 
with  the  relation  of  the  parties  which  was  prescribed  by  the 
medial  judgment.     For  all  that,  the  Germanic  law  came  near  to 
the  introduction,  in  these  cases,  of  a  special  possessory  remedy ; 
a  procedure  such  as  the  Roman  law  had  perfected  in  its  possessor}^ 
interdicts,  and  through  which  the  issue  of  possession  is  directly 
regulated  and  a  usurped  possession  reestablished,  every  incjuiry 
into  the  right  to  possession  being  intentionally  left  over  for  a 
special  suit.     I^nlikc  the  German  law,  the  Anglo-Norman  and 
the  French  law  did  develop  distinctive  possessory  actions, — the 
former  as  early  as  the   1100  s,  the  latter  in  the  1200  s,  — par- 
ticularly the  so-called  "  querela   no\-8e  dissaisiuje  "  :  actions  that 
originated  in  the  inquisitorial  powers  of  the  Frankish  kings  and 
the  inquisitorial  procedure  developed   in  the    royal  court,   and 
which  therefore   continued   to   be  decided,  not  in  the  ordinary 

'  Lnhnml,  "Die  vormofjensreehtlichen   Klagen   nach   den   sachsischen 
Rechtsquellen"  (18G9),  189. 

196 


Ch.\P.  V]  THE    LAW    OF   LAND  :     POSSESSION  [§  28 

courts,  secular  and  spiritual,  but  in  the  ducal  and  royal  courts. 
The  absence  in  Germany  of  similar  organs,  which  might  have 
guaranteed  even  to  the  man  of  lower  degree  a  prompt  possessory 
protection  as  against  great  landholders,  made  impossible  there 
a  similar  development.  It  was  the  influence  of  the  alien  law,  and 
especially  that  of  the  Canon  law,  that  first  led  to  similar  results 
in  Germany. 

As  for  the  other  cases  of  incorporeal  seisin,  if  one  who  enjoyed 
such  seisin  relied  for  his  defense  upon  the  fact  of  livery,  of  judicial 
adjudication,  or  of  inheritance,  and  had  established  such  fact,  the 
role  of  defendant  was  assured  also  to  liim,  and  the  advantage  of 
proof;  and  by  the  proof  of  such  fact  there  was  simultaneously 
shown  his  better  right,  and  the  absence  of  right  underlying  the 
mere  physical  seisin  of  his  contestant,  —  so  that  the  question  of 
law  was  decided  at  the  same  time  with  the  question  of  fact. 

The  distinction  between  the  two  appeared,  on  the  other  hand, 
more  sharply  in  those  cases  where  both  parties  relied  for  their 
defense  upon  seisins  of  equal  rank ;  as  when,  for  example,  in  bound- 
ary disputes  between  two  neighbors  each  of  them  alleged  that  he 
had  been  seised  of  the  land ;  or  when  two  landlords  contested  an 
estate  which  neither  would  surrender  to  the  other,  each  claiming 
to  have  the  seisin,  having  received  rent  from  the  rentaler. 
Whereas  in  earlier  times  accident  would  seem  to  have  been 
decisive  in  such  a  case,  —  accident  in  the  sense  that  he  who  first 
brought  his  action  acquired  "  ipso  facto  "  the  position  of  a  defend- 
ant in  an  action  concerning  seisin,  —  i.e.  the  advantage  of  proof, 
—  it  appears  from  the  sources  of  the  time  of  the  Law  Books  that 
the  judge  then  inquired,  which  of  the. parties  had  done  acts  that 
must  be  regarded  as  enjoyment  of  the  lands,  or,  as  the  case  might 
be,  which  could  point  to  earlier  acts  of  such  character.  If,  how- 
ever, nothing  definite  could  be  determined  in  this  respect,  then  the 
neighbors  were  heard.  If  the  inquiry  still  remained  without  results, 
then  resort  was  had  either  to  the  expedient  of  a  public  partition 
of  the  disputed  land,  so  that  each  party  must  thereafter  appear 
as  plaintiff  with  reference  to  the  piece  that  had  fallen  to  his  op- 
ponent, or  else  matters  were  left  to  an  ordeal.  In  such  judg- 
ments, again,  the  same  as  in  judgments  for  restitution  in  cases  of 
disseisin,  we  have  to  do,  not  with  the  termination  of  an  independent 
possessory  action,  but  merely  with  a  settlement,  in  accord  with  a 
medial  judgment,  of  one  part  of  the  litigation.  For  in  this  case 
as  in  that,  and  as  in  all  the  cases  referred  to  in  which  seisin  is 
defended  against  an  attack  at  law  or  a  court  asked  to  protect  a 

197 


§  28]  THE    LAW    OF   THINGS  [BooK   11 

seisin  already  interfered  with,  the  defense  alike  of  actual  and  of 
ideal  seisin  was  based,  not  upon  the  assertion  of  the  naked  fact 
of  its  enjoyment,  but  always  and  directly  upon  the  assertion  of  a 
right  —  or  as  the  case  might  be,  the  better  right  —  to  the  land. 

(2)  It^  "  Aggressive  "  or  "  Creative"  lisped  ("  Offensivwirkung  " 
=  Huber,  "  Wirkung  der  Rechtsverwirklichung  "  =  Gierke)  in 
the  establishment  of  possessory  rights.  As  we  have  just  seen,  a 
relative  seisin  gave  him  who  relied  uj)on  it  and  proved  his  allega- 
tions the  favored  position  of  a  defendant,  who  might  prove  his 
right  against  the  plaintiff's  attack.  At  the  same  time  it  displayed 
its  aggressive  force.  Thanks  to  the  favored  procedural  standing 
that  it  conferred  upon  one  who  enjoyed  it,  it  was  superior  to  every 
corporeal  seisin  that  op])osed  it ;  it  "  broke  "  such  seisin  unless 
this  was  supported  by  an  independent  right.  The  person  who  had 
such  incorporeal  seisin  could  bring  an  action,  relying  upon  it,  and 
enjoy  as  plaintiff  those  benefits  of  proof  which  ordinarily  inured 
to  a  defendant  only. 

The  same  was  true,  as  already  explained,  in  case  of  forcible  dis- 
possession. The  disseisee  could  try,  in  the  first  instance,  to  re- 
instate himself  by  his  own  power  in  possession  of  the  land ;  for 
the  intruder's  physical  control,  because  resting  upon  a  breach  of 
right,  had  as  against  him  no  right  to  protection.  If,  however, 
that  attempt  failed,  or  was  in  the  nature  of  things  imjiossible, 
and  the  disseisee  brought  an  action  for  reinstatement  in  the  seisin, 
then  his  incorporeal  seisin,  which  by  assumption  was  continuous, 
secured  to  him  the  advantage  of  proving  the  interference  with  his 
right,  thereby  securing  a  judicial  restoration  of  his  seisin  through 
a  retransformation  of  an  incorporeal  into  a  corporeal  seisin. 

So  also  in  the  other  cases  of  incorporeal  seisin.  He  upon  whom 
such  a  seisin  had  fallen,  by  livery,  adjudication,  or  inheritance, 
might  first  attempt  by  self-helj)  to  reduce  the  lands  to  control. 
If  he  was  hindered  in  so  doing  by  one  who  had  a  corporeal  seisin, 
then,  in  case  seisin  was  adjudicated  to  him  by  decree  of  court  or 
awarded  to  him  by  judicial  livery,  he  could  immediately  demand 
a  judicial  induction  into  possession  by  executory  j)rocess.  lie 
was,  indeed,  bound  to  bring  action  against  the  occupant,  but  here 
again, — because  he  could  rely  upon  the  incorporeal  s(>isin,  —  he 
enjoyed  the  position,  favorable  from  the  staii(li)()int  of  procedure, 
of  one  having  seisin.  If,  for  example,  the  heir  found  the  estate 
in  the  hands  of  a  stranger,  he  would  bring  an  action  against  the 
abator  on  the  basis  of  his  (incorporeal)  seisin  of  iniicritance,  which 
enabled  him  to  prove  at  once  his  character  as  heir.     Once  such 

198 


Chap.  V]  THE   LAW   OF  LAND  :     POSSESSION  [§  28 

proof  was  made,  the  corporeal  seisin  of  the  abator  was  "  broken." 
Only  when  the  latter  could  oppose  to  him  an  independent  source 
of  right  or  title,  —  for  example  the  fact  that  he  had  bought  the 
land  in  controversy  from  the  heritor  before  his  death,  —  did  the 
demandant's  incorporeal  seisin  fail  to  break  the  defense,  for  in 
such  case  the  right  of  the  occupant  proved  to  be  older,  and  conse- 
quently better. 

With  dormant  and  multiple  seisins  the  case  was  similar.  Either 
of  the  co-existent  seisins  empowered  its  holder  to  make  upon  the 
other  an  attack  by  way  of  legal  action,  which  would  "  break  " 
the  latter  if  there  appeared  in  it  a  physical  control  inconsistent 
with  the  demandant's  right. 

In  the  same  way  a  proprietary  seisin  could  "  break  "  the  imme- 
diate (usufructuary)  seisin  dependent  upon  it.  Suppose,  for  ex- 
ample, that  lands  were  let  at  a  rent  by  the  owner  to  a  peasant  as 
tenant  for  life,  and  after  the  tenant's  death  his  heir  remained  on 
the  land  and  refused  to  surrender  possession  ;  or  that  the  question 
was  one  of  a  lease  for  years,  and  despite  the  expiration  of  the  term 
the  tenant  did  not  vacate.  Here  also,  if  the  owner  brought  suit 
against  the  actual  occupant  on  the  basis  of  his  proprietary  seisin, 
the  advantage  of  proof  lay  with  the  plaintiff,  for  the  corporeal 
seisin  of  the  defendant  had  become  wrongful. 

The  result  was  the  same  when  the  owner  possessed  only  a  dor- 
mant seisin,  —  for  example  because  he  received  no  rent.  If  the 
seisin  of  the  owner  who  had  let  lands  for  rent,  or  of  a  pledgor  who 
had  given  to  his  creditor  a  pledgee's  seisin  in  a  piece  of  land,  had 
been  violated,  —  let  us  say,  in  that  the  holder  of  the  immediate 
seisin  (the  rentaler,  the  pledgee)  had  conveyed  or  re-pledged  the 
lands  to  a  third  person,  —  the  holder  of  the  superior  seisin  (the 
owner)  could  turn  the  "  aggressive  force  "  of  his  proprietary  seisin 
against  any  third  occupant,  and  "  break  "  his  physical  control. 
For  here  again  there  came  into  play  the  effect  of  the  principle  of 
publicity  applicable  to  all  legal  relations  to  land.  Since  the  lease, 
or  the  pledge  had  been  effected  by  a  public  act,  "  it  was  per- 
fectly well  known  within  the  community  and  the  whole  juris- 
diction of  the  court  who  was  occupying  lands  as  owner,  and 
who  as  rentaler  or  pledgee ;  and  if  not  known,  the  fact  could 
everywhere  be  ascertained."  '  The  corporeal  seisin  of  the  third 
person,  also,  was  therefore  defective,  since  it  lacked  the  one 
essential  requisite  of  seisin,  the  possibility  of  alleging  an  objec- 

^  Huber,  "Die  Bedeutung  der  Gewere  im  deutsehen  Sachenrecht" 
(1894),  12. 

199 


§  2S]  THE    LAW    OF   THINGS  [BoOK    II 

tively  existent  real  right ;  and  it  was  therefore  bound  to  yield 
to  the  undefective  seisin  of  the  owner.  And  whether  the  seisin 
of  the  owner  was  a  visible,  or  only  a  dormant  or  expectant,  seisin 
made  no  difference  in  the  result. 

(3)  Its  "  Translative "  Action,  or  effect  of  passing  rights 
("  Translativwirkung  "  =  Huber,  "  Wirkung  der  Rechtsiiber- 
tragung  "  =  Gierke).  Since  every  possible  real  right  in  lands 
found  expression,  as  has  been  shown,  in  a  seisin,  the  conveyance 
of  every  such  right  necessarily  assumed  the  form  of  a  transfer  of 
seisin.  Seisin  was  therefore  "  inevitabl}-  a  precondition  to,  and 
the  sufficient  legitimation  of,  the  conveyance  of  every  right  in 
land."  Even  seisins  of  inheritance  could  arise  only  upon  condi- 
tion that  the  heritor  had  had  seisin  in  the  land  inherited. 

Incorporeal,  dormant,  and  expectant  seisins  possessed  in  the 
same  degree  as  corporeal  seisin  the  power  of  transferring  to  one  who 
acquired  them  the  rights  that  underlay  them.  It  is  true  that 
inasmuch  as  the  former  classes  themselves  were  lacking  in  the 
element  of  physical  control,  such  control  could  not  be  conferred 
upon  the  grantee  by  their  transfer.  He  did  acquire,  however,  the 
right  embodied  in  those  forms  of  seisin ;  so  that  for  him  also 
there  resulted  from  such  a  transfer  an  incorporeal,  dormant,  or 
expectant  seisin  in  his  favor,  and  this  had  the  same  effect  thence- 
forth, as  to  him,  as  it  had  had  before  in  favor  of  his  grantor. 

In  the  case  of  a  corporeal  seisin  we  have  seen  that  there  was 
always  a  possibility  of  its  being  imperfect  or  defective,  in  that 
the  assertion  of  an  objectively  existent  right  might  be  opposed  to 
the  actual  facts.  If  such  a  defective  seisin  was  conveyed  from 
its  holder  to  another,  it  retained  its  defect,  as  a  matter  of  course, 
in  the  hands  of  the  transferee.  True,  the  defect  was  not  necessarily 
visible ;  it  became  so  only  when  one  with  a  better  right  attacked 
such  defective  seisin.  Until  then  the  appearance  of  right  spoke 
for  the  grantee,  as  before  for  his  grantor ;  and  until  the  defect  was 
taken  advantage  of  he  was  also  protected  by  the  law  against 
strangers,  as  the  holder  of  the  right  apparently  embodied  in  the 
seisin. 

Under  some  circumstances,  however,  the  defect  might  be  cured 
in  the  hands  of  the  transferee,  so  that  the  apparent  right  became, 
as  to  him,  transformed  into  an  actual  right.  This  leads  us  to  the 
institute  known  as  "  rechtc  "  seisin. 

(V)  Legitimatized  or  Citation  Seisin  ("rechte  "  =  "rightful  "  — 
i.e.  judicially  sanctioned — seisin).  —  As  was  shown  above  (pp. 
195  et  seq.),  the  mere  running  of  time  was  capable,  in  certain  cases  of 

200 


Chap.  V]  THE    LAW   OF   LAND  :     POSSESSION  [§  28 

defective  seisin,  of  creating  a  right  where  there  had  been  before  a 
lack  of  right.  For  if  one  forcibly  disseised  did  not  within  a  year 
and  a  day  proceed,  in  reliance  upon  his  incorporeal  seisin,  against 
the  holder  of  the  corporeal  seisin,  then  the  corporeal  seisin,  which 
was  as  such  defective  because  of  the  breach  of  right,  was  trans- 
formed into  a  legitimate  ("  rechtmJissige  ")  seisin,  in  favor  of 
the  disseissor  and  every  later  holder.  The  defective  origin  was 
wholly  overcome  by  the  fact  of  physical  control  exercised  through 
a  year  and  a  day ;  for  the  disseisee  had  forever  estopped  himself 
by  silence.  Here,  however,  there  was  no  question  of  a  'legitimatized 
seisin,  —  "  rightful  "  seisin  in  the  technical  sense ;  although  the 
latter  also  arose  from  prescription  ("  Verschweigung  ",  acquiescent 
preclusion). 

In  citation  seisin  the  question  was  never  one  of  curing  an  un- 
lawful possession  based  upon  violent  disturbance  of  another's 
right ;  on  the  contrary,  it  presupposed  a  perfectly  lawful  seisin,  — 
indeed,  always  originally,  and  as  a  rule  even  later,  —  a  seisin 
created  by  judicial  release. 

This  citation  seisin  of  lands,  —  which  we  meet  with  in  fully 
developed  form  "  toward  the  end  of  the  1000  s  or  in  the  first  half 
of  the  1100  s  in  France,  in  Germany,  in  Northeastern  Spain,  in 
England,  and  in  Flanders;  and  whose  existence  in  the  first  half 
of  the  1000  s  we  may  infer,  for  Germany  from  documentary  evi- 
dence, and  for  France  from  the  Franco-Oriental  and  the  Norman- 
Sicilian  systems  of  law  ",  —  had  its  origin  (as  is  shown  by  the 
recent  researches  of  Brunner,^  which  confirm  the  older  studies  of 
Sohm  ")  in  the  legal  institutions  of  the  Frankish  Empire.  It  was 
evolved  in  the  course  of  the  800  s :  "  doubtless  in  the  first  place 
as  a  privilege  of  the  king  that  originated  in  connection  with  the 
tacit-preclusion  period  ('  Verschweigungsfrist ')  of  a  year  and  a 
day,  which  had  been  applied  under  the  '  missio  in  bannum  regis  ' 
in  execution  proceedings  since  the  capitulary  of  Ludwig  I  of  818- 
819."  Just  as  in  those  proceedings  a  year's  stay  was  left  open 
to  the  outlaw  within  which  to  release  his  land  from  the  royal 
power,  after  the  running  of  which  period  the  preliminary  out- 
lawry of  his  goods  ("  Fronung  ")  became  a  definite  confiscation, 
so  in  the  case  of  a  judicial  release  of  seisin  notice  was  given  that 
all  outstanding  claims  against  the  estate  must  be  presented  within 
a  certain  period,  under  penalty  of  acquiescent  preclusion.  Parties 
present  in  court  were  required  to  do  this  immediately;    others, 

^  B runner,  "Luft  maeht  frei"  (supra,  p.  91),  38-4G. 
2  In  Z.2  R.  G.,  I  (1880),  53  el  scq. 

201 


§  28]  THE    LAW    OF   THINGS  [BooK   II 

within  a  year  and  a  day,  —  that  is,  according  to  the  later  inter- 
pretation {supra,  p.  15)  within  the  period  covered  by  three  regu- 
lar ("  echte  ")  and  three  bidden  ("  gebotene  ")  folk-courts, 
or  one  year,  six  months,  and  three  days.  Claims  that  were  not 
presented  within  such  time  were  thereby  barred ;  whereas,  aside 
from  judicial  publication  and  ban,  claims  were  ordinarily 
barred  only  after  thirty  years.  AVhoever,  after  such  judicial 
ban,  retained  unchallenged  seisin  for  a  year  and  a  day,  gained 
thereby  the  "  rechte  "  or  judicially  sanctioned  seisin.^ 

This  carried  with  it  important  procedural  advantages  in  his 
favor.  According  to  early  Frankish  law,  as  it  long  maintained 
itself  in  the  Netherlands,  —  and  quite  in  accordance  with  the  origin 
of  the  institute,  —  in  case  an  attack  should  nevertheless  be  made 
upon  his  seisin  he  needed  simply  to  oppose  to  the  complaint  an 
allegation  of  the  fact  of  his  unchallenged  possession  during  one 
year ;  or  in  case  such  allegation  were  denied  by  his  opponent  to 
prove  such  fact.  In  other  words,  he  need  not  enter  upon  a  dis- 
cussion of  the  question  of  right  at  all ;  he  could,  in  this  respect, 
simply  refuse  to  answer  the  comjilaint.  It  is  true  that  the  medie- 
val Saxon  law,  which  brought  the  institute  of  judicial  seisin  to  its 
fullest  de\'elopment,  showed  many  departures  from  this  simple 
rule,  and  particularly  one  according  to  which  the  defendant,  after 
proving  by  witnesses  his  unchallenged  possession  for  one  year, 
swore  by  his  own  oath  to  the  rightful  basis  of  his  seisin,  there- 
with repelling  the  demandant's  attack.  According  to  Heusler  " 
the  explanation  of  this  fact  may  be  that  the  period  that  deter- 
mined the  legitimacy  of  the  seisin  had  come  to  be  differently 
reckoned.  The  important  question  was  no  longer  whether  the 
seisin  had  been  challenged  during  the  first  year  after  its  inception, 
but  whether  it  had  been  so  challenged  during  the  year  last  prior 
to  the  bringing  of  the  action.  This  last  could  easily  be  proved 
by  witnesses,  but  the  fact  of  quiet  possession  during  the  first  year 
could  not  be  proved  so  readily  if,  —  as  was  usually  the  case,  — 
many  years  had  passed  since  the  establishment  of  the  seisin. 
For  this  reason  the  defendant  was  allowed,  in  such  case,  to  make 
his  oath.  These  variations  of  the  Saxon  law  showed  an  emanci- 
pation from  the  old  historical  basis  of  the  Frankish  peace-ban ; 
and  this  was  apparent  also  in  the  fact  that  the  preliminary  rccjuire- 
ment  of  a  livery  perfected  before  the  court  was  later  abandoned, 
—  citation  seisin  being  recognized  as  possible  whenever  the  seisin 
had  originated  in  a  visible  act.     Thereafter  the  period  of  a  year 

•  Ssp.,  II.  44,  §  1.  ^  "Gewere",  107. 

202 


Chap.  VI  THE   LAW   OF   LAND  :     POSSESSION  [§  28 

and  a  day  was  no  longer  strictly  maintained,  but  was  arbitrarily 
varied.  The  institution  gradually  fell  into  confusion,  which  was 
increased  still  more  by  classing  it  with  that  other  institute,  men- 
tioned above,  by  which  a  seisin  wrongfully  acquired  was  validated 
after  a  year  and  a  day ;  with  which,  however,  it  had  originally 
nothing  to  do.  At  an  early  date  the  influence  of  alien  law  also 
made  itself  felt  in  this  connection ;  for  the  Schwabenspiegel 
already  accepted,  as  regarded  land,  the  Roman  usucapion  periods 
of  ten  and  twenty  years.  All  these  transformations,  which  brought 
about  the  eventual  decay  of  the  institute,^  are  to  be  explained  by 
the  circumstance  that  judicial  release  of  seisin  became  ever  more 
rare,  especially  in  South  Germany. 

(VI)  Seisin  of  Incorporeal  Things.  —  Inasmuch  as  the  medieval 
law,  as  shown  above  (p.  161),  applied  the  law  of  land  not  only  to 
land  itself  but  also  to  incorporeal  things,  —  such  as  existing  rights 
to  land,  and  all  other  independent  interests  in  land  ("  liegenschaft- 
liche  Gerechtigkeiten  ")  —  it  was  logical  to  assume  a  seisin  in  them, 
in  other  words  a  seisin  in  rights  ("  Rechtsgewere  "),  which  con- 
formed in  every  respect  to  the  principles  of  seisin  in  material 
things,  and  which  might  therefore,  like  the  latter,  take  the  form 
of  corporeal  and  incorporeal,  feudal,  rental,  pledge,  or  judicial 
seisin.  As  a  practical  matter,  it  made  no  difTerence  whether  the 
holder  of  the  real  right,  —  for  example  a  lessor,  —  was  regarded  as 
having  a  seisin  in  the  right  to  collect  the  rent,  or  a  seisin  in  the 
land  out  of  which  the  rent  was  payable  that  was  outwardh^  ex- 
pressed in  the  right  to  the  rent.  As  a  general  rule,  probably  in  all 
cases  where  seisin  involved  actual  occupancy  of  land,  this  right 
was  regarded  as  seisin  in  a  material  thing,  whereas  in  other  cases 
of  real  rights  men  spoke  preferably  of  a  seisin  in  the  right  rather 
than  in  the  thing,  —  for  example,  in  cases  of  rights  to  rent 
("  Zins  "),  annuities  ("  Renten  "),  land  charges,  and  rights  in 
"  alieno  solo  "  ("  Grundgerechtigkeiten  ").  Alike  in  private  and 
public  law  a  peculiar  significance  came  to  attach  to  this  concept 
of  seisin-in-rights  in  the  case  of  those  real  rights  in  gross 
("  liegenschaftliche  Gerechtsame  ")  that  related  to  definite  lands 
but  did  not  include  the  immediate  usufruct  thereof.  Such  were 
the  usufructuary  regalities,  rights  of  ban  and  judicial  execution, 
perquisites  ("  Gerechtsame ")  of  office,  and  political  privileges 
{e.g.  a  privileged  status  in  court)  :  in  short,  all  rights  that  could 
be  the  subject  of  tenure. 

'Compare  with  this  "Rechtsfall  3"  in  Stutz,  "ITongger  Meier- 
geriehtsurteile  des  16.  und  17.  Jahrhunderts "  (1912),  12-15. 

203 


§  28]  THE    LAW    OF   THINGS  [BoOK   II 

(VII)  Common  Qualities  of  Medieval  Seisins.  —  If  one  com- 
pares the  leading  features  of  the  law  of  seisin  brought  out  in  the 
preceding  pages,  it  becomes  manifest  that  it  was  an  institute  of 
literally  universal  importance.  It  is  to  be  remembered  also  that 
the  seisin  of  chattels  rested  upon  the  same  bases  (infra,  §  57), 
notwithstanding  that  its  elaboration  was  different  in  details,  and 
that  it  was  precisely  in  this  difference  that  the  distinction  between 
the  law  of  land  and  of  chattels,  so  important  in  the  INIiddle  Ages, 
found  expression.  With  regard  to  the  end  it  was  designed  to 
serve  seisin  must  be  put  alongside  the  Roman  "  possessio  "  and 
the  modern  concept  of  possession,  —  although  it  is  distinct  from 
both.  It  was  "  the  form  under  which  real  rights  were  defended, 
acquired,  and  transferred."  There  existed  no  real  right  that  could 
not  have  been  represented  in  the  garb  of  seisin,  and  every  real 
right  was  recognized  in  the  form  of  seisin  only.^  It  was  neither 
mere  actual  dominion,  nor  a  condition  corresponding  to  owner- 
ship and  protected  by  the  law  in  the  interest  of  ownership ;  it 
was  neither  a  right  to  the  possession,  nor,  as  Albrecht  believed, 
an  independent  real  right  to  "  represent  "  a  thing  in  court. ^  It 
was,  on  the  contrary,  a  form-concept.  Its  most  important  func- 
tion, aside  from  its  effect  of  passing  rights,  lay  in  its  service  as  a 
formal  legitimation  in  the  enforcement  of  the  real  right  that  was 
assumed  to  lie  back  of  it,  but  which  it  was  necessary  to  look  to 
only  when  questioned. 

The  reception  of  the  Roman-Canon  law,  coupled  with  a  lack  of 
understanding  for  the  consistency  and  practical  utility  of  seisin, 
threw  the  foundations  of  that  institute,  at  first,  into  confusion. 
In  the  end,  however,  the  fundamental  idea  that  characterized  it, 
—  the  eml)odiment  of  real  rights  in  a  form  visible  to,  and  therefore 
binding  upon,  all  —  has  gained  renewed  recognition  in  the  modern 
system  of  land  registry. 

§  29.    Influence  of  the   Alien  Law  of    Possession.'^  —  The  doc- 

^  Huber,  op.  cit.,  20. 

^Albrecht,  in  his  "Gewere",  125,  makes  the  generalization:  "If  for 
the  concept  of  seisin,  which  was  treated  as  a  right  to  represent  a  thing  in 
litigation,  we  seek  an  equivalent  that  brings  it  nearer  to  our  present  law, 
we  find  sueh  availalile  in  the  ('()n('ci)t  of  materiality  or  '  thinglikene.ss' 
('Dinglif'hkeit').  Seisin  is  that  which  gives  real  ('dingliche')  elTect  to 
the  relation  of  a  person  to  a  thing;  that  is,  wliich  is  the  basis  of  a  real 
action  or  a  defense  against  the  real  action  of  another."  (licrkc  aptly 
remarks  ("  Privatrecht",  II,  194,  X.  'M))  that  by  this  assumption  of  an 
independent  real  right  to  re[)resent  a  thing  in  litigation,  as  existing  along- 
sifle  f)f  real  rights  that  themselves  give  no  right  of  action,  seisin  is 
transformed  into  a  special  real  right  in  a  material  sense. 

^  V.  Savigny,''DaiS  Recht  des  Besitzes"  (1803;  7th  ed.,  by  Rudorff, 
1865) ;   Bruna,  "Das  Recht  des  Besitzes  im  Mittelalter  and  in  der  Gegen- 

204 


Chap.  V]  THE   LAW   OF   LAND :    POSSESSION  [§  29 

trine  of  seisin  was  unable  to  hold  its  own  against  the  intruding 
alien  law.  The  alien  law  before  which  it  had  to  yield  was  not, 
however,  the  pure  Roman  law  of  "  possessio."  It  was  rather  that 
law  which  Italian  theory  and  the  practice  of  legists  and  canonists 
had  developed  out  of  the  Roman,  following  the  lead  of  the  Canon 
law.  The  classical  Roman  system  was  built  upon  assumptions  of 
underlying  social  conditions  quite  different  frOm  the  actual  con- 
ditions of  medieval  life.  It  was  therefore  natural  that  a  theory 
and  judicial  practice  which  had  to  serve  the  conditions  of  their 
time,  and  consequently  to  adapt  the  classical  Roman  law  to  those 
conditions,  was  controlled  by  the  influence  of  Germanic  legal 
views  that  had  sprung  from  those  conditions.  In  the  feudal  law, 
especially,  there  prevailed  "  the  absolute  cult  of  the  Germanic 
theory  of  seisin."  ^ 

This  Germanization  or  medievalization  of  the  classic  Roman 
law  was  continued  in  Germany.  The  Italian-Canon  law  of 
possession  taken  over  at  the  Reception  suffered  still  further 
transformations  in  German  courts  and  statutes,  the  result  of  which 
was  to  make  it  conform  still  more  nearly  to  old  native  institutions. 
The  legislation  of  the  Territories,  particularly,  and  above  all  the 
great  modern  codifications,  preserved  many  elements  of  Germanic 
law. 

All  the  same  this  did  not  alter  the  fact  that  in  place  of  the  old 
law  of  seisin  there  had  entered  into  the  common  law  of  Germany 
an  essentially  alien  law  of  possession,  so  that  the  very  name  of 
seisin  wholly  disappeared.  Unlike  the  former  doctrine  of  seisin, 
this  new  common-law  doctrine  of  possession,  a  mixture  of  antique 
and  medieval  ideas,  was  far  from  being  clear  and  logical ;  and 
this  mainly  because  the  older  common-law  theory,  without  any 
understanding  for  the  fragments  of  the  native  law  and  without 
historical  insight  into  the  antique  law  of  the  "  Corpus  Juris  ", 
attempted  as  best  it  could  to  fasten  the  old  and  new  mechanically 
together.  It  was  the  Historical  School  of  the  1800  s  that  first 
undertook,  under  the  leadership  of  Savigny,  to  clear  the  pure 
Roman  law  of  alien  blemishes,  and  to  bring  the  classical  law,  thus 
theoretically  restored,  into  exclusive  supremacy  in  judicial  prac- 
tice. In  the  latter  undertaking  it  did  not  succeed,  for  the  influence 
of  the  particularistic  systems  was  the  stronger;  and  in  the 
end  these  prevailed  also  in  the  drafting  of  the  present  Civil  Code. 

wart"  (1848);  "Die  Besitzklagen  des  romischen  und  heutigen  Reehts" 
(1857). 

1  Heusler,  "Gewere",  298. 

205 


§  29]  THE    LAW    OF   THINGS  [BoOK   II 

Before  we  proceed  in  the  following  pages  to  point  out  in  their 
chief  features  the  mutations  of  the  old  doctrine  of  seisin,  we  must 
first  of  all  remark  that  the  Germanic  distinction  between  the  law 
of  lands  and  the  law  of  chattels  came  to  an  end,  in  principle,  with 
the  Reception.  The  new-made  "  Roman  "  doctrine  of  possession 
applied  equally  to  all  sorts  of  things ;  and  that  now  became  the 
rule  in  Germany,  though  not  indeed  in  so  absolute  a  form  as  that 
which  ultimately  prevailed  at  Rome.  This  was  prevented,  in 
particular,  by  the  development  of  the  registry-system  in  the  law 
of  land.  The  result  was  that  the  form  or  mode  of  possession, 
as  well  as  the  provisions  for  protecting  possession,  remained  dif- 
ferent in  the  law  of  land  and  the  law  of  chattels,  —  an  important 
after-efl'ect  of  the  old  theory  of  seisin.  Because  of  these  facts 
it  will  be  necessary,  in  the  following  discussion,  to  continue  the 
separate  treatment  of  the  two  classes  of  things  with  reference  to 
the  points  indicated,  and  to  consider  first  lands,  exclusively. 
What  we  have  to  say  in  the  following  account  of  them  holds  good, 
howe\er,  in  other  respects,  of  movables. 

(I)  The  Concept  of  Possession.  —  The  "  possessio  "  of  Roman 
law  was  itself  not  merely  the  physical  occupancy  ("  Innehabung  ") 
of  a  thing,  — mere  detention  that  stood  in  contrast  to  possession. 
But  possession,  in  Roman  law,  did  presuppose  under  all  circum- 
stances actual  physical  control.  To  this,  the  "  corpus  ",  there 
must  be  added  a  will,  the  "  animus  possidendi  "  ;  though  it  is  true 
that  as  regards  the  nature  and  significance  of  this,  unanimity  never 
was  attained  in  the  Pandect  theory.  Where  it  was  lacking,  the 
Roman  law  denied  the  protection  otherwise  accorded  to  posses- 
sion, namely  the  possessory  interdicts.  The  normal  case  of 
possession  was  the  possession  of  an  owner,  —  possessory  dominion 
("  Besitzherrschaft  ")  exercised  with  an  "  animus  domini."  This 
conception  of  possession  was  the  same  for  movable  and  immovable 
things. 

(1)  Seisin  and  Possession.  —  As  has  been  shown  in  preceding 
pages  (§  28),  seisin  was  the  "  dress  "  of  things  in  Germanic  law : 
every  real  right  must  appear  within  that  covering.  It  was  foreign 
to  the  Roman  law,  "  possessio  "  being  as  just  remarked  normally 
merely  the  outward  form  of  the  right  of  ownership,  but  the  idea 
of  seisin  was  nevertheless  not  abandoned.  However,  in  conse- 
quence of  the  development  of  the  modern  system  of  land  registry, 
which  was  associated  with  the  treatment  of  the  incorporeal  seisin 
created  by  livery,  this  "  publicital  "  function  of  seisin  became 
separated  in  the  law  of  land  from  the  element  of  physical  control, 

206 


Chap.  V]  THE   LAW   OF   LAND :    POSSESSION  [§  29 

and  passed  over  into  the  register-entry.  The  entry  was  thence- 
forth "  the  legal  vesture  of  the  land."  In  the  law  of  chattels,  on 
the  other  hand,  the  seisin  of  the  old  law,  and  its  legal  significance 
from  a  substantive  viewpoint,  have  lived  on  in  the  "  possession  " 
of  the  modern  law.  There  was  thus  perpetuated  a  distinction,  in 
this  respect,  between  the  law  of  land  and  the  law  of  chattels  that 
was  unknown  to  the  Roman  law.  In  the  land-law,  in  consequence 
of  the  prevalence  of  the  registry  system,  the  significance  that  for- 
merly attached  to  possession  came  to  attach  exclusively  to  the  book- 
entry  ;  whereas  in  the  law  of  chattels,  after  as  before  the  Recep- 
tion, possession  exercised  upon  the  substantive  law,  as  respects 
the  protective  remedies  accorded  to  it,  the  consequences  peculiar 
to  the  former  law  of  seisin.  In  the  same  way,  possession  played 
no  part  in  the  conveyance  of  land  and  the  establishment  of  rights 
therein.  According  to  the  registry  system,  as  will  be  later  explained, 
a  mere  book-entry  suffices  to  transfer  rights  in  land  ;  whereas  in  the 
law  of  chattels,  — in  agreement  with  the  Roman  law,  —  the  modern 
possession  took  over  the  "  translative  "  function  of  seisin.  The 
"  public  faith  "  ("  offentliche  Glaube  ")  of  the  register  realized, 
far  the  more  completely,  the  idea  of  the  old  law  that  the  actual 
circumstances  of  possession  should  give  rise  to  a  presumption  of 
rightfulness  in  their  favor.  But  this  also  holds  good  only  for  the 
land  law.  In  the  case  of  movables  simple  possession,  in  the  sense 
of  actual  physical  control,  suffices  in  the  modern  law,  as  did  once 
incorporeal  seisin,  to  establish  the  right  of  the  occupant. 

(2)  Elements  of  Possession.  —  Possession  was  attributed  in  Roman 
law  to  no  one  besides  the  owner  save  to  a  pledgee,  a  "  precario- 
habens  "  (permissive  possessor),  and  a  stakeholder.  These  were 
exceptions  to  its  general  rule  which  were  known  in  the  common-law 
theory  as  cases  of  "  derivative  possession  ",  and  which  are  doubt- 
less to  be  explained  upon  grounds,  not  of  theory,  but  of  social 
and  historical  conditions.  It  did  not,  on  the  other  hand,  attribute 
possession  to  the  depositary,  commendatary,  mandatary,  hirer 
("  Mieter  "),  and  lessee  ("  Pachter  ").  Nor  did  it  accept  the  Ro- 
man law  in  this  matter.  On  the  contrary  the  attempt  was  made 
to  attribute  the  character  of  "  juristic  "  possession  to  every  kind 
of  physical  control  that  rested  upon  an  independent  right ;  and 
to  deny  this,  as  did  the  old  law  of  seisin,  only  in  those  cases  where 
such  control  was  exercised  in  another  person's  name.  It  was 
sought  to  reconcile  this  doctrine  with  the  Roman  law  cither  by 
putting  in  place  of  the  "  animus  domini  "  required  by  the  prevail- 
ing theory  the  wider  term  "  animus  rem  sibi  habendi  ",  or  by  ex- 

207 


§  29]  THE    LAW    OF   THINGS  [BoOK   II 

tending  the  cases  of  "  derivative  "  possession.  Similar  attempts, 
grounded  upon  the  law  of  seisin,  were  made  by  the  codes. 

The  Prussian  "  Landrccht  "  went  farthest  in  this  respect. 
Alongside  of  a  "  perfect  possession  "  that  corresponded  to  the  old 
proprietary  seisin,  and  which  alone  was  covered  by  the  Roman 
"possessio",  it  put  an  "  imperfect  possession  "  that  included  every 
form  of  detention,  other  than  that  of  an  owner,  that  was  accom- 
panied by  an  intent  to  exercise  a  right  for  the  detainer's  own  bene- 
fit. Thus  the  Prussian  "  Landrccht "  recognized,  besides  the 
possession  of  an  owner  ("  Eigenbcsitz  "),  an  independent  posses- 
sion ("  einen  eigenen  Besitz  ")  of  a  lessee,  hirer,  usufructuary,  etc. ; 
and  regarded  only  cases  of  user  ("  Verwaltung  ")  in  the  exercise  of 
another's  right  as  cases  of  a  dependent  "  detention  "  ("  unselb- 
standige  Inhabung  "), — though  according  possessory  protection 
even  to  the  latter  as  against  third  parties.  The  present  Civil 
Code  has  brought  the  evolution  to  an  end  in  perfect  harmony 
with  the  old  Germanic  law.  It  has,  it  is  true,  wholly  abandoned 
the  physical  indicium  of  usufruct  ("  Nutzung  "),  characteristic  of 
the  old  law  :  every  independent  physical  dominion  —  along  with 
that  of  the  owner  and  of  all  persons  entitled  to  enjoyment,  that  of 
a  custodian,  a  guardian,  etc.  —  is  "possession"  (§§872,  8G8). 
Only  a  dependent  administrative-custody  ("  unselbstiindige  Ver- 
waltungsinhabung  ")  is  no  possession  (§  855) ;  in  this  case  the 
person  having  control  is  a  "  possessory-servant  "  ('*  Besitzdiener  ") 
of  the  possessor.  The  Swiss  Civil  Code  has  gone  still  farther  in 
recognizing  outright  all  actual  control  over  a  thing  as  possession 
(§  919). 

(3)  In  close  connection  with  all  this  was  the  recognition  —  quite 
irreconcilable  with  the  classic  Roman  law  —  of  multiple  possessions 
of  the  same  thing.  The  Italian  jurists  had  already  found  them- 
selves compelled  to  recognize  this  characteristic  product  of  medie- 
val life ;  and  had  striven  to  bring  it  into  harmony  with  the  classic 
sources  by  employing  the  concepts  of  "  naturalis  "  and  "  civilis 
possessio"  ,  and  superior  and  subordinate  ownerships.  In  Ger- 
many, also,  the  law  remained  after  tiie  Recei)ti<)n  decidedly  upon 
an  indigenous  basis.  The  recognition  of  classes  of  "  independent  " 
possession,  besides  proprietary  possession,  was  precisely  and  pri- 
marily designed  to  make  possible  such  co-existence.  Here  again 
the  new  Civil  Code  has  gone  back  to  the  old  law  even  more  com- 
pletely than  did  the  codes  that  preceded  it.  Its  "  mediate  " 
possession  (§  8G8)  is  the  old  proprietary  seisin  ;  its  "  immediate  " 
possession,  subordinate  to  the  former,  the  old  immediate  seisin  of 

208 


Chap.  V]  THE  LAW  OF  LAND:    POSSESSION  [§  29 

rentalers,  vassals,  etc.  And  though,  in  the  case  of  mediate  pos- 
session it  omits  the  requisite  of  physical  user,  one  may  regard  this, 
with  Gierke,!  as  a  continuation  of  the  old  "  dormant  "  seisin.  In 
the  Swiss  Civil  Code  (§  920)  the  "independent"  possession  of  an 
owner  corresponds  to  the  "  mediate  ",  and  the  "  dependent  " 
possession  of  one  to  whom  a  thing  has  been  transferred  for  the 
purpose  of  conveying  a  limited  real  or  personal  right  corresponds  to 
the  "  immediate  ",  possession  of  the  German  Code.  Thus  in  the 
law  of  to-day  there  is  again  possible,  as  was  the  case  in  the 
Middle  Ages,  a  gradation  of  several  "  possessory  dominions  " 
("  Besitzherrschaften  ")  :  below  the  proprietary  possession  of  the 
owner  other  independent  ("  Fremd-  ")  or  tenurial  ("  Lehn-  ") 
possessions  of  the  most  varied  sorts,  —  for  example,  those  of 
owners,  usufructuaries,  usufructuary  lessees  ("  Pachter ")  and 
sub-lessees  ("  Afterpiichter  ").  In  what  respects  the  Civil  Code 
has  gone,  in  this  matter,  even  beyond  the  medieval  law,  recogniz- 
ing the  possibility  of  multiple  possession  in  the  case  of  chattels, 
will  be  indicated  in  connection  with  the  law  of  chattels  {infra, 
§  57). 

(4)  As  respects  'possession  of  rights,  the  prevailing  tendency  in 
the  Middle  Ages  to  assimilate  legal  relations  to  things  had  already 
led  (as  noted  supra,  p.  201),  to  an  application  of  the  seisin-concept 
to  all  rights  in  any  way  associated  with  particular  pieces  of  land ; 
and  this  even  when  such  rights  necessarily  lacked  the  element 
of  usufruct  which  was  required  in  other  cases.  The  tendency 
of  this  principle  was  bound  to  be  absolutely  contrary  to  the  Roman 
law,  for  this,  aside  from  a  few  special  cases,  recognized  a  so-called 
"  iuris  "  or  "  quasi  possessio  "  in  the  case  of  servitudes  only.  At 
the  same  time,  seisin  of  rights  was  classified  without  scruple  under 
the  Roman  concept  of  "  quasi  possessio  ",  thus  completely  trans- 
forming this.  The  Canon  law,  especially,  stretched  the  concept 
beyond  all  limits :  it  recognized  quasi-possession  in  all  rights  of 
lordship  —  over  churches,  in  ecclesiastical  offices  and  dignities,  in 
the  benefices  associated  therewith,  in  advowsons,  and  even  in  the 
mutual  rights  of  husband  and  wife.  Germany  followed  the  Canon 
law  in  this  respect.  The  term  "  possession  ",  —  which  the  ad- 
jective "  quasi  "  of  course  no  longer  fitted,  —  was  extended  to 
cover  all  rights,  including  rights  in  movables,  and  claims ; 
only  rights  under  the  family-law,  or  at  least  the  marital-possession, 
("  Ehebesitz  ")  of  the  Canon  law,  were  excepted.  The  Codes, 
too,  treated  either   all  rights   of  permanent  enjoyment  (so  the 

i"Privatreeht",  II,  220. 
209 


§  29]  THE    LAW    OF   THINGS  [BoOK   II 

Prussian  Code)  or  all  trafficable  incorporeal  things  whatever  (so 
the  Austrian  Code)  as  equivalents,  as  regarded  possession,  of  cor- 
poreal things.  On  the  other  hand  the  j)resent  Civil  Code  has  at 
last  "  heedlessly  broken  at  this  point  the  thread  of  German  legal 
development  ",  ^  inasmuch  as  it  concedes  possessory  remedies  for 
the  i)rotection  only  of  real,  and  restricted  personal,  servitudes ; 
recognizing  no  possession  of  rights  in  other  cases.  The  Swiss 
Civil  Code,  however,  makes  the  actual  exercise  of  the  right  equiv- 
alent in  the  case  of  real  servitudes  and  land  charges  to  the 
possession  of  a  thing  (§  919,  2). 

(II)  Acquisition  and  Loss  of  Possession.  (1)  Original  Acquisition 
of  Possession.  —  The  common  law  as  well  as  the  Territorial 
systems  adopted  the  principle  that  in  order  to  acquire  possession 
actual  physical  custody  ("  corpus  ")  must  coexist  with  the  will- 
to-possess  ("  animus ").  The  requirement  of  actual  physical 
custody  was  set  up  by  the  common  law,  following  the  Roman,  as 
an  absolute  principle,  even  with  reference  to  land.  This  made 
the  acquisition  of  possession  by  judicial  surrender  of  seisin  and 
decree  of  court  impossible.  Consequently,  the  cases  of  incor- 
poreal seisin  disappeared  from  the  common  law,  which  in  its  law 
of  possession  maintained  simply  the  old  doctrine  of  corporeal 
seisin.  On  the  other  hand,  wherever  the  land-registry  sj'stem  was 
developed  the  consequences  of  seisin  based  upon  release  and  judg- 
ments were  transferred  to  the  book  entry ;  most  distinctly  in 
the  Austrian  law,  which  in  its  so-called  "  Tabular  "  or  "  book  " 
(i.e.  registered)  possession  recognized  a  special  kind  of  possession. 
With  respect  to  the  possessory  animus,  the  common  law  also  re- 
jected, as  already  indicated  (p.  208  supra),  the  narrow  Roman 
view,  and  adhered  to  the  old  theory  of  seisin.  In  the  law  of  to-day, 
on  the  other  hand,  the  element  of  will  is  taken  into  account,  but 
only  to  the  extent  that  a  corresponding  will-to-possess  must,  under 
some  circumstances,  accompany  an  actual  reduction  to  physical 
custody. 

(2)  Derivative  Acquisition  of  Possession. — The  other  Roman 
principle  —  that  all  acquisitions  of  possession  are  original,  and  in 
particular  that  even  in  the  case  of  "  tradition  "  there  is  merely 
a  sequence  in  time,  but  no  succession  —  was  rejected.  On  the 
contrary,  "  original  "  acquisition  resulting  from  a  unilateral 
physical  rcfluetion  to  custody  was  placed  alongside  of  "  deriva- 
tive "  acquisition  that  came  into  existence  by  a  transfer  of  posses- 
sion. This  un-Roman  conception,  which  dominated  the  older 
1  "Privatrooht",  II,  226. 
210 


Chap.  V]  THE   LAW   OF   LA>rD:     POSSESSION  [§29 

common  law  and  the  systems  of  Territorial  law,  has  been  adopted 
also  by  the  new  Civil  Code  and  by  the  Swiss  Civil  Code. 

The  transfer  of  possession  is  a  juristic  act. 

(A)  This  juristic  act  may  sometimes  consist  in  a  corpore.u, 
DELIVERY.  Originally,  this  was  an  indispensable  requisite,  as  well 
in  medieval  as  in  Roman  law,  for  every  acquisition  of  possession. 
However,  as  explained  above  {supra,  pp.  189  et  seq.),  the  medieval 
land  law  abandoned  this  requirement  in  cases  of  incorporeal  posses- 
sion. And  even  the  Roman  law  disregarded  it  under  some  cir- 
cumstances (depositing  something  in  the  house  of  the  acquirer, 
posting  of  a  guard  by  the  acquirer,  delivery  of  a  key,  delivery  of 
documents  of  title,  putting  identification  marks  upon  a  thing,  a 
declaration  of  tradition  in  sight  of  the  object  to  be  conveyed, 
"  traditio  brevi  manu  ",  "  constitutum  possessorium  ").  This  con- 
currence, which  at  best  was  only  superficial,  had  already  been 
seized  upon  in  Italy  for  the  purpose  of  developing  the  theory  of 
the  so-called  "  traditio  ficta  ",  that  is  a  transfer  of  possession  by 
mere  words  and  tokens  without  corporeal  delivery ;  which  theory 
was  then  carried  to  Germany  and  adopted  in  the  Law  Books.^ 
Certain  cases  of  this  "  traditio  ficta  "  used  in  contrast  with  "  tra- 
ditio vera  ",  —  in  particular  the  tradition  of  keys  and  deeds,  — • 
were  designated  as  "  symbolical  "  tradition,  with  inaccurate  refer- 
ence to  the  old  forms  of  transfer  in  the  Germanic  land  law.  This 
was,  however,  a  complete  confusion,  historically,  of  entirely  dis- 
tinct principles  of  Germanic  and  Roman  law.  The  clarified 
Romanistic  jurisprudence  of  the  1800  s  showed  the  inconsistency 
between  such  a  concept  and  the  Roman  sources.  It  was  conse- 
quently abandoned,  and  is  not  recognized  by  the  new  Civil  Code. 
At  the  same  time,  however,  under  the  general  principles  of  that 
Code  the  requirement  of  delivery  ("  Ubergabe  ")  is  satisfied  by 
handing  over  that  which,  according  to  popular  understanding,  is 
the  means  of  assuring  physical  control  over  the  thing  to  be  de- 
livered ;  for  example,  a  key.  Similarly,  the  marking  of  wares, 
which  according  to  medieval  notions  was  a  peculiarly  effective 
means  of  satisfying  the  requisite  of  a  visible  notification  of  change 
in  their  control,  can  be  regarded  under  the  present  law,  also,  as 
equivalent  in  effect  to  an  actual  delivery.  The  Swiss  Civil  Code 
gives  expression  to  this  idea  in  the  general  provision  that  posses- 
sion is  transferred,  not  only  by  delivery  of  the  thing  itself  but  also 
by  delivery  of  the  means  of  procuring  control  over  the  thing  to 
be  delivered  (§  922).  Peculiarly  important  in  modern  commercial 
1  Biermann,  "Traditio  ficta"  (1891). 
211 


§  29]  THE   LAW   OF   THINGS  [Book  II 

law,  yet  likewise  rooted  in  old  Germanic  law,  is  the  delivery  of 
wares  by  niannal  delivery  of  mercantile  papers  relating  to  them 
(bills  of  ladiniii;,  carrier's  recei})ts,  and  warehouse  receipts  and 
dock  warrants). 

(B)  Beside  the  transfer  of  possession  by  physical  delivery  (or  its 
substitute)  stands  transfer  perfected  ry  juristic  act,  which, 
provided  certain  preconditions  are  satisfied,  passes  possession  by  a 
"possession-contract"  ("  Besitzvertrag  "),  in  other  words,  by  a 
mere  declaration  of  will.  The  principles  of  the  Roman  law  have 
come  to  control  this  mode  of  transfer,  and  also  dominate  the 
regulation  by  the  Civil  Code  of  agreements  for  the  transfer  of 
possession. 

(3)  As  already  explained  {.supra,  p.  190)  seisin  of  lands  passed 
by  inheritance  directly  to  the  heir,  as  incorporeal  seisin.  Such 
seisin  hi/  descent  stood  in  the  sharpest  contrast  with  the  principles 
of  the  Roman  law  of  possession  and  inheritance.  Nevertheless  it 
had  already  been  retained  in  Italian  theory  under  the  name  of 
"  possessio  civilissima  " ;  and  in  Germany,  the  Roman  law  was 
likewise  unable  to  dislodge  it.  ]\Iany  statutes  and  many  writers 
recognized  it.  Most  of  the  modern  State  systems,  also,  either 
provided  exi)licitly  that  the  heir  should  acquire  the  inheritance 
only  by  a  special  reduction  to  possession,  —  as  did  the  Bavarian 
"  Landrecht  "  and  the  Saxon  Code ;  or  contained  no  explicit  pro- 
vision whatever,  —  like  the  Prussian  "  Landrecht  "  and  the  Aus- 
trian Code.  This  abandonment  of  the  old  native  law  in  Germany 
itself  was  all  the  more  striking  because  almost  all  of  the  modern 
codes  outside  of  Germany,  and  notably  the  Code  Civil  (to  be  sure 
there  was  doubt  as  to  the  meaning  of  its  provisions,  the  Baden 
"Landrecht"  being  clearer),  retained  the  principle  of  inherited 
possession.  It  was  only  with  the  Civil  Code  that  a  return  was 
made  to  original  Germanic  law  (§  857).  Not  only  has  it  recog- 
nized the  transfer  of  possession  by  inheritance,  but  it  has  applied 
this  to  all  things ;  not  merely  to  lands.  The  Swiss  Civil  Code 
has  taken  the  same  stand  (§  560,  2). 

(4)  As  regards  positive  prescription  ("  Ersitzung  "),  it  has  already 
been  explained  (supra,  p]).  200  et  seq.)  that  this  was  unknown  to 
the  medieval  law,  although  citation  ("  rechtc  ")  seisin  played  a 
similar  role  in  the  case  of  land.  With  the  Reception  of  Roman 
law  its  doctrine  of  usucapion  was  adopted  in  Germany.  Wher- 
ever the  land-registry  system  attained  predominance,  however, 
the  possibility  of  acquiring  possession  in  lands  by  the  mere  run- 
ning of  time  wholly  disappeared ;  although  in  many  local  systems, 

212 


Chap.  V]  the   LAW   OF  LAND  :    POSSESSION  [§  29 

e.g.  in  the  Austrian,  there  was  introduced  "  a  positive  prescrip- 
tion upon  the  basis  of  the  book-entry  reminiscent  of  judicial 
seisin  "  ("  Tabularersitzung  ")•  ^  Citation  seisin,  on  the  other 
hand,  Hved  on  without  a  break  in  the  so-called  "  possession 
annale  "  of  the  French  law,  which  gives  a  possessory  remedy  solely 
for  the  protection  of  a  possession  undisturbed  during  one  year. 
The  present  Civil  Code  has  wholly  done  away  with  any  ordinary 
positive  prescription  of  rights  in  land,  admitting  an  exceptional 
one  in  certain  cases  only  (§§  900,  927).  The  Swiss  Civil  Code 
recognizes  an  ordinary  positive  prescription  in  favor  of  one  who 
has  been  unjustifiably  registered  in  the  landbook  as  owner,  and 
has  possessed  the  land  in  good  faith,  uninterruptedly  and  without 
challenge,  for  ten  years  (§  661).  It  recognizes  also  an  extraordi- 
nary prescription  after  an  uninterrupted  and  unchallenged  pos- 
session for  thirty  years  whenever  the  land  has  not  been  entered 
in  the  register,  or  its  owner  does  not  appear  therefrom  (562). 

(5)  In  accordance  with  the  principles  that  regulated  its  acquisi- 
tion, loss  of  possession  necessarily  resulted,  from  the  Reception 
onward,  from  the  cessation  of  actual  control.  The  Italian  jurists, 
however,  had  earlier  insisted  upon  the  fiction,  peculiar  to  the 
seisin  theory,  that  one  who  was  forcibly  disseised  of  land  did  not 
cease  to  "  possess  ",  but  retained  at  least  provisionally  the  (in- 
corporeal) seisin.  As  we  shall  see  in  the  next  section  (§  36),  this 
Germanic  idea  was  of  great  importance  in  Italy  in  the  transfor- 
mation of  the  Roman  possessory  actions.  In  Germany,  too, 
where  with  the  Italian  concept  of  possession  there  was  adopted 
the  Italian  doctrine  relative  to  the  protection  of  possession,  the 
fiction  was  for  a  time  adhered  to ;  the  theory  being  followed  that 
the  disseisee  "possessionem  solo  animo  retinet."  Indeed,  Ihis 
theory  was  even  extended  to  chattels.  In  more  recent  times, 
however,  this  after-effect  of  the  old  incorporeal  seisin  disappeared, 
along  with  the  whole  medieval  scheme  of  possessory  actions.  In 
the  law  of  chattels,  the  distinction  between  voluntary  and  in^•olun- 
tary  loss  of  possession  retained  a  decisive  importance  even  after 
the  Reception  (as  will  be  shown  later,  §  57) ;  and  thus  it  con- 
tinued to  be  true  in  the  modern  and  in  the  present  law  that  the 
effects  upon  the  positive  law  of  protecting  possession  are  different 
and  more  limited  in  the  law  of  chattels  than  in  the  land  law,  a 
regulation  totally  at  variance  with  the  Roman  law  of  the  Reception. 

(Ill)  The  Protection  of  Possession:    (1)   The  Roman  Interdicts. 
—  As  we  have  seen,  German  law  knew  no  independent,  no  special, 
1  Gierke,  "Privatreeht",  II,  265. 
213 


§  29]  THE    LAW   OF   THINGS  [BoOK   II 

protection  of  possession,  and  no  special  possessory  action.  The 
lawsuit  upon  the  issue  of  seisin  became,  in  its  trial-stage,  a  con- 
test with  regard  to  the  riglit  embodied  therein.  Only  the  mere 
beginnings  were  established  of  a  procedure  designed  to  regulate 
solely  possession.  The  special  protection  of  possession  that  was 
independently  developed  in  the  French  and  English  law  was  first 
adopted  in  Germany  with  the  alien  system,  —  and  then  in  a  form 
by  no  means  clear. 

In  sharpest  contrast  to  the  German  law,  the  Roman  had  carried 
through  "  with  great  clearness  "  the  protection  of  possession  as 
such,  without  regard  to  its  rightfulness  or  lawfulness.  In  its 
possessory  action  prosecuted  upon  the  basis  of  the  so-called  posses- 
sory interdicts  derived  from  the  praetorian  law,  possession  and  its 
disturbance,  or  ouster  therefrom,  constituted  the  exclusive  cause 
of  complaint.  Pleas  based  upon  a  right  in  the  thing  itself,  so- 
called  petitory  pleas,  were  absolutely  excluded.  Moreover,  the 
interdict  procedure  served  to  fix  the  roles  of  the  parties  in  the 
trial  of  title  that  followed ;  for,  with  respect  to  the  latter,  the 
victor  in  the  possessory  action  either  gained  for  himself,  or  made 
himself  secure  in,  the  position  of  defendant  of  which  he  had  been 
deprived,  or  his  claim  to  which  had  been  contested ;  and  could 
now  wait  to  see  whether  the  dispossessed  demandant  could  suc- 
ceed in  proving  a  better  right  than  his  own  to  the  thing  contested. 
But  both  actions,  later  distinguished  as  "  possessorium  "  and 
"  petitorium  ",  remained  wholly  distinct. 

The  Roman  law  knew  two  possessory  actions,  according  as  the 
question  involved  was  one  of  damages  for  past  disturbance  or  of 
security  against  a  threatened  disturbance  of  possession,  or  a  ques- 
tion of  regaining  possession  after  ouster.  The  first  purpose  was 
served  by  the  so-called  "  Interdictum  uti  possidetis  " ;  for  the 
originally  co-existent  "  Interdictum  I'trubi  "  for  movables  had 
disappeared  before  the  Justinian  codification.  It  was  an  "  Inter- 
dictum retinendse  possessionis."  By  means  of  it,  a  present 
possessor,  that  is  one  who  at  the  time  of  bringing  action  was  in 
actual  possession,  demanded  protection  against  disturbances  that 
had  already  taken  place  or  were  threatened.  He  succeeded,  how- 
ever, only  when  he  had  not  himself  gained  possession  by  a  wrong 
done  in  some  way  to  his  opj)onent.  He  must  not  possess,  as 
against  him,  "  vi,  clam,  precario."  If  such  proved  to  be  the  case, 
he  was  himself  condemned  to  give  back  possession  to  the  defendant 
he  had  sued  (hence  called  "  indicium  duplex  ").  The  "  uti  possi- 
detis ",  therefore,  could  be  used  also  by  one  who  had  been  dis- 

214 


Chap.  V]  THE   LAW   OF   LAND :    POSSESSION  [§  29 

possessed  "  vi,  clam,  precario  ",  in  order  to  regain  the  possession 
which  his  opponent  had  so  procured  "  vi,  clam,  precario."  The 
interdict  served  here,  exceptionally,  as  an  aid  in  the  reacquisition 
of  possession.  If  both  parties  alleged  possession,  the  interdict 
served  to  determine  the  disputed  facts  regarding  possession,  and 
thus  the  role  of  defendant  in  the  trial  of  title. 

The  "  Interdictum  Unde  vi  "  was  an  "  Interdictum  recuperandpe 
possessionis."  It  was  available  to  one  who  had  been  forcibly  dis- 
possessed of  land,  and  compelled  the  dispossessor  to  deliver  up 
possession. 

(2)  These  institutes  of  the  classic  Roman  law  suffered,  first  in 
Italy  and  later  in  Germany,  important  changes.  It  is  not 
difficult  to  recognize  in  these  the  influence  of  seisin,  which  was  still 
exercising  its  dominance  over  men's  minds,  unbeknown  to  them. 

(A)  The  fact  just  mentioned,  that  the  Roman  law,  under  cer- 
tain circumstances,  already  attributed  to  the  "  Uti  possidetis  ", 
which  originally  served  merely  to  defend  possession,  a  resti- 
tutive  function,  —  namely,  in  favor  of  one  who  had  lost  pos- 
session "  vi,  clam,  precario  ",  thus  according  a  protection  that 
extended  beyond  the  "Interdictum  Unde  vi"  (which  had  reference 
only  to  land  and  violent  dispossession  in  the  proper  sense)  was 
plainly  in  entire  agreement  with  the  assumption,  familiar  to 
medieval  jurists  since  the  days  of  seisin,  of  an  incorporeal  seisin 
that  continued  to  exist  in  the  disseisee.  The  interdict  was  thence- 
forth used  for  the  protection  not  only  of  corporeal  but  also  of  in- 
corporeal seisin  (to  use  the  terminology  of  Germanic  law).  In 
other  words,  a  disturbance  of  possession  was  assumed  where  the 
Romans  had  seen  ouster,  and  would  therefore  have  permitted  the 
"  Interdictum  Unde  vi  "  alone ;  and  the  result  of  this  was  wholly 
to  obliterate  the  line  between  disturbance  and  ouster,  so  that  the 
difference  between  the  "  Uti  possidetis  "  and  the  "  Unde  vi  " 
was,  at  least  practically,  abolished.  This  was,  moreover,  as 
Heusler  points  out,^  a  natural  result  of  the  actual  conditions  of 
medieval  possession,  which  differed  so  greatly  from  the  Roman. 
If,  for  example,  an  isolated  collection  of  tithes  was  to  be  prevented, 
this  could  be  regarded  equally  well  as  a  disturbance  of  the  posses- 
sion of  the  tithe-owner  or  as  a  disseisin  of  the  right  itself  to  the 
tithes. 

But  there  was  a  further  Germanistic  muddling  of  the  Roman 
law.  The  "Interdictum  Uti  possidetis"  was  based,  as  above  re- 
marked, directly  and  exclusively  upon  the  fact  of  possession  at 

^"Gewere'\  312. 
215 


§  29]  THE    LAW    or   THINGS  [BoOK   II 

the  moment  action  was  brcuglit.  This  fact  alone  needed  to  be 
proved.  If  both  parties  relied  upon  possession,  the  court  had  to 
decide  which  side  had  actually  enjoyed  it  at  that  time.  This  also, 
as  Ileusler  remarks,^  fitted  Roman  conditions,  especially  "  the 
aedes,  the  present  possession  of  which  was  open  and  manifest." 
But  it  was  not  adapted  to  possessory  relations  as  developed  in 
medieval  civilization,  —  not,  for  example,  to  lands  that  were 
scattered  among  the  estates  of  any  number  of  lords  (think  of 
the  landed  possessions  of  a  rich  church  or  cloister  !),  and  still  less 
to  all  kinds  of  real  rights  in  gross  ("  Rechtsamen  ")  which  were 
quite  unknown  to  the  Romans.  For  this  reason,  when  both  parties 
alleged  any  usufructuary  ("  hcbbende  ")  seisin,  the  medieval  law, 
as  above  pointed  out  (page  19G),  fell  back  upon  the  older  seisin. 
There  was  developed  from  this  in  Italy  the  presumption  that  such 
elder  seisin  was  also  the  present  seisin ;  and  therefore  proof  was 
required,  at  the  outset,  of  the  older,  but  not  of  the  present,  seisin. 

Finally,  the  influence  of  the  seisin-concept  was  also  seen  in  the 
fact  that  instead  of  adhering  to  the  original  function  of  the  "  Uti 
possidetis  "  as  a  purely  possessor}'  remedy,  the  question  of  right 
was  drawn  into  the  suit  in  Germanic  fashion,  and  petitory  pleas 
allowed ;  although  the  Glossators  were  not  friendly  to  this  mix- 
ture of  "  possessorium  "  and  "  petitorium." 

(B)  The  "  INTERDICTUM  UNDE  VI  "  was  subjected  to  changes  no 
less  radical  than  those  suffered  by  the  "  Uti  possidetis."  From 
it  the  Canon  law  developed  what  was  later  known  in  Germany 
as  the  action  of  spoliation.  The  name  implies  the  historical  origin. 
The  Pseudo-Isidore  had  laid  down  the  rule  in  a  number  of  the 
decretals  he  forged,  that  a  bishop  who  had  been  driven  from  his 
see  and  robbed  of  his  ])ower  and  property,  and  against  whom  a 
criminal  action  was  brought,  need  not  make  answer  to  the  charge 
until  the  Church's  power  should  have  restored  to  him  everything : 
the  "  exceptio  spolii "  should  be  available  to  him — although 
this  was  not  merely  a  dilatory  plea,  but  at  the  same  time  an 
action  directed  against  the  possessor  of  the  object  of  which  the 
complainant  had  been  despoiled,  for  the  return  of  the  iin])r()- 
priated  possession.  "  Certainly  ",  says  Savigny,'  "  nobody  could 
have  foreseen  less  than  the  forger  himself  who  concocted  these 
letters  of  Roman  bishops  that  from  one  of  their  passages  there 
would  one  time  be  derived  a  wholly  new  system  of  law  relating  to 
possessory  remedies,  and  indeed  of  possession  itself."  That  re- 
sulted from  the  celebrated  "  Canon  Redintegranda  ",  which  Gra- 
>  "Gewere",  311.  i  "Besitz",  §  50. 

216 


Chap.  V]  THE  LAW  OF  land:    possession  [§29 

tian  included  in  his  Decretals  (c.  3,  C.  3,  q.  1).  Upon  this  Canon 
the  canonists  based  an  independent  action,  the  "  condictio  ex 
canone  ",  or,  as  it  was  called  in  France,  the  "  Redintegrande." 
It  extended  the  scope  of  the  "  Interdictum  Unde  vi",  in  that 
it  was  applicable  also  to  chattels ;  in  being  available  not  only 
against  actual  "vis"  but  also  against  any  "iniusta  possessio"; 
and  in  being  directed  not  only  against  the  dispossessor  but 
also  against  every  third  party  in  possession.  And  although 
these  extensions  constituted,  in  truth,  essential  improvements  as 
compared  with  the  Roman  "remedium  recuperandae  possessionis  ", 
yet  here  too  there  resulted,  in  time,  from  the  1300  s  onward,  a 
complete  obscurement  of  the  Roman  foundation.  As  in  the  case 
of  the  "  Unde  vi  "  so  in  that  of  the  "  Condictio  ex  canone  ",  the 
plaintiff  was  originally  bound,  in  accordance  with  its  character 
as  a  mere  possessory  remedy,  to  establish  the  fact  of  ouster  or 
spoliation.  But  in  this  action,  as  in  the  "  Uti  possidetis  ",  the 
rule  was,  as  it  were,  "  smuggled  in  "  ^  that  the  plaintiff  should 
show  his  elder  possession,  and  that  from  this  there  must  then 
be  inferred  the  "iniustitia"  of  the  defendant  and  the  illegality 
of  his  possession,  until  proof  of  the  contrary.  The  consequence 
was  that  a  distinction  between  the  two  actions,  —  the  "  Uti 
possidetis  "  as  transformed,  and  the  "  Unde  vi  "  as  extended 
to  serve  as  an  action  of  spoliation,  —  was  thenceforth  quite 
impossible.  Both  actions,  peculiar  hybrids  of  Roman  and  Ger- 
manic ideas,  united  what  the  Roman  law  had  consciously  and 
sharply  distinguished :  disturbance  of  possession  and  ouster, 
possession  and  right.  These  were,  therefore,  themselves  inca- 
pable of  mutual  delimitation. 

In  this  way  the  medieval  Italian  procedure  had  deprived  the 
Roman  possessory  action  of  its  simple  character.  It  had  become 
cumbersome  and  slow.  This  caused  the  introduction  of  a  new 
procedure,  a  so-called  "  summariissimum  ",  which  concluded  with 
a  judgment  preliminary  to  the  "  possessorium." 

(3)  Possessory  Remedies  of  the  German  Laiv.  —  These  complicated 
actions  were  now  introduced  into  Germany.  The  "  Uti  posside- 
tis ",  mixed  in  Italy  with  elements  of  seisin,  was  developed  by 
the  theorists  into  a  so-called  "  possessorium  ordinarium."  As 
such  it  "  almost  became  a  petitory  action  founded  upon  a  better 
right  of  possession."  ^  This  action  had  to  be  brought  in  cases  of 
disturbed  possession;  or  as  men  said  in  the  1500s,  "  umb  Irrung 
des  Besitzes  "  (on  account  of  disturbance  of  possession),  without 

1  Heusler,  "Gewere",  319.  2  Gierke,  "Privatreeht",  II,  247. 

217 


§  29]  THE    LAW    OF   THINGS  [BoOK   II 

distinction  between  immovables  and  movables.  At  the  same 
time  men  also  clung  very  fast  in  Germany  to  the  notion,  derived 
from  the  old  law  of  seisin,  that  a  violent  disjiossession  does  not 
destroy  legal  possession.  The  spoliation  action,  which  found 
equal  application  to  all  classes  of  things  and  which  received  the 
broadest  possible  interpretation  in  its  ap])li('ation,  remained  the 
remedy  for  all  those  cases  in  which  the  plaintitf  had  been  deprived 
of  his  possession,  not  by  an  act  of  violence,  but  in  some  other 
wrongful  manner,  or  simply  against  his  will.  In  cases  of  violent 
dispossession  it  was  concurrent  with  the  "  possessorium  ordi- 
norium."  Inasmuch  as  the  spoliation  action  was  confined  to  the 
issue  of  ejectment  and  admitted  of  no  pleas  of  title,  —  i.e.  was 
given  a  possessory  character,  —  it  actually  served,  in  cases  of  dis- 
possession, mainly  as  a  possessory  process  preliminary  to  the  peti- 
tory "  ordinarium."  In  cases  where  the  facts  of  possession  were 
doubtful  the  "  summariissimum  ",  which  was  also  received  into 
Germany,  served  as  the  possessory  remedy.  In  the  Prussian  law, 
for  example,  it  was  the  sole  action,  aside  from  the  purely  petitory 
"  ordinarium  ",  for  the  protection  of  possession.  It  was  charac- 
terized by  certain  peculiarities  of  procedure  that  aimed  at  prompt 
results ;  but  certainly  without  permanent  success,  for  Savigny 
relates  that  he  took  part  in  a  suit  that  lasted  twelve  years,  and  in 
which  the  "  ordinarium  "  might  easily  have  lasted  fifty,  and  the 
"  petitorium  "  a  hundred  years  ! 

Recent  imperial  legislation  has  completely  swept  away  this 
rubbish.  There  are  no  longer  any  special  possessory  actions, 
the  possession  being  protected  by  means  of  the  ordinary  civil 
procedure.  The  functions  of  the  old  "  summariissimum  "  are 
now  performed  by  provisional  orders.  The  actions  for  the  pro- 
tection of  possession  that  are  allowed  by  the  new  Ci\'il  Code, 
and  which  are  based  cither  upon  a  dispossession  or  an  interference 
with  possession,  alike  of  movables  and  immovables,  are  pure  pos- 
sessory actions.  Pleas  of  right  to  the  possession  are  barred,  and 
reserved  to  the  petitory  proceeding.  Every  possessor  is  protected, 
not  merely  the  owner.  As  all  possession,  even  of  land,  presupposes 
under  the  existing  law  actual  physical  control,  there  is  no  longer 
anything  analogous  to  the  one-time  protection  of  incorporeal 
seisin.     As  regards  land,  however,  the  registry  system  applies. 

§  30.  The  Land- Registry  System.'  —  (T)  The  Medieval  Law.  — 
Already  in  the  early  Middle  Ages  there  became  prevalent  in  Ger- 

'  Randa,  "Die  gesehiehtliche  Rntwioklung  des  Instituts  der  oflfentlichen 
Bucher  in  Osterreich",  in  Z.  Priv.  off.   R.,  VI  (1879),  81-119;    Aubert, 

218 


Chap.  V]  THE    LAW    OF   LAND:     POSSESSION"  [§30 

many,  along  with  the  late  Roman  system  of  diplomatics,  the  custom 
of  employing  written  notes  or  memoranda  to  give  greater  securit}' 
to  legal  transactions  which  were  especially  important  or  which 
were  designed  to  have  permanent  effect ;  and  especially,  therefore, 
in  the  case  of  transactions  relating  to  land.  The  churches 
and  cloisters,  in  particular,  not  only  began  to  keep  copy-books  in 
which  they  gathered  together  copies  of  instruments  executed  in 
their  favor,  but  also  conveyance-books  in  which  were  entered  in 
the  form  of  a  register  original  notes  of  conveyances  of  land. 
Whether  these  private  conveyance-books  of  the  great  seigniories 
became  the  model  for  the  public  "  town-books  "  that  began  to 
appear  from  the  middle  of  the  1100  s  on,  is  doubtful.  It  is  more 
probable  "  that  the  institution  of  town-books  or  registers,  once 
developed  in  a  particular  city  and  region,  spread  from  such  a 
point,  in  other  words  from  town  to  town."  ^  In  this  process  the 
development  of  municipal  chanceries  and  of  the  office  of  town 
clerk  was  certainly  of  material  influence.  The  town  clerk  was 
often  himself  brought  from  abroad,  and  brought  with  him  into 
his  new  position  the  chancery  practices  elsewhere  observed.  Inas- 
much as  it  had  become  customary  from  the  1000  s  onward,  and  in 
many  places  a  necessity,  to  carry  out  in  court  legal  transactions 
affecting  land  (infra,  §  24),  such  acts  came  to  be  performed  in  the 
cities,  especially  in  those  of  North  Germany,  before  the  town- 
court  or,  later,  before  the  town  council ;  which  tribunals  habitually 

"Beitriige  zur  Geschichte  der  deutschen  Grundbiicher",  ed.  by  Doublier, 
in  Z2.  R.  G.,  XIV  (1893),  1-74;  Rehme,  "Das  Lubecker  Oberstadtbuch " 
(1895);  "Zur  Geschichte  des  Miinchener  Liegensehaftsreehtes",  reprint 
from  "Festgabe  fiir  H.  Dernburg"  (1900) ;  "Geschichte  des  jMiinehener 
Griindbuches "  (1903);  "Ober  das  alteste  bremisehe  Grundbuch  (1438- 
1558)  und  seine  Stellung  im  Liegensehaftsrechte"  ("Stadtrechtsfor- 
schungen,  ler  Teil",  1908);  "Uber  die  Breslauer  Stadtbiicher,  Ein 
Beitrag  zur  Geschichte  des  Urkundenwesens,  zugleich  der  stadtisehen 
Verwaltung  und  Reehtsptlege "  ("  Stadtreehtsforschungen,  2er.  Teil  ', 
1909);  K.  Beyerle,  "Die  deutschen  Stadtbiicher",  in  Deut.  G.  Bl.,  XI 
(1910),  145-200;  Kleeberg,  " Stadtschreiber  und  Stadtbiicher  in  IMuhl- 
hausen  i.  Th.  vom  14.  bis  16.  Jalu-lumdert  nebst  tJbersicht  iiber  die 
Editionen  mittelalterUcher  Stadtbiicher",  in  Arch.  Urk.  F.,  II  (1910), 
407-90;  Redlich,  "Die  Jiltesten  Nachrichten  iilier  die  Prager  Stadt- 
biicher und  die  bohmisclie  Landtafel",  in  Inst.  ost.  G.  F.,  XXXII  (1911), 
105-71;  "Die  Privaturkunden  des  MitteUvlters",  in  v.  Below  and  Mci- 
neckc's  "Handbuch  der  mittolalterlichen  und  neueren  Gescliichte", 
"Urkundenlehre"  by  Erhcn,  SclimUzhdllenbcrg  and  Redlich,  Part  3  (1911), 
181  et  seq.;  Weiss,  "Zur  Geschichte  des  Realfoliums  und  des  Ilaupt- 
buchsystems  in  Osterreich",  in  " Festsclirif t  zur  Jahrhundertfeier  des 
allgemoinen  biirgerlichen  Gesetzbuchs",  II  (1911),  509-.549;  Rehme, 
"Zur  Geschichte  des  Grundbuchwesens  in  Berlin",  in  "Festschrift  fiir 
Gierke"   (1911),  .52.5-.587. 

•  Beyerle,  op.  cit.,  183.    To  the  same  effect,  Redlich,  "  Privaturkunden," 
191. 

219 


§  30]  THE    LAW    OF   THINGS  [BoOK  II 

made  notes  of  them  —  at  first  very  brief  —  for  preservation. 
From  these  official  registers  there  were  fleveU^petl  the  town  regis- 
ters. They  appear  earUest  in  Cologne  where,  in  the  Martin's 
parish,  there  is  to  be  seen  a  protocol  of  as  early  a  date  as  1135 
or  thereabouts,  drawn  up  by  skevins  upon  great  sheets  of  parch- 
ment, concerning  the  acquisition  of  real  rights  in  lands.  This 
example  was  soon  followed  by  other  parishes  of  the  city,,  save  that 
they,  instead  of  fastening  together  loose  sheets  ("  Schreinskarten  ", 
—  shrine  sheets),  used  books,  in  such  a  manner  that  each  quar- 
ter of  every  parish  had  its  special  press-book.  From  Cologne 
the  practice  spread  rapidly  to  Andernach  and  Metz.  In  the 
1200  s  such  town-books  soon  spread  over  the  whole  of  North 
Germany,  particularly  to  those  cities  that  belonged  to  the 
Magdeburg  and  Liibeck  groups  of  town  law;  in  many  of 
which  places  (Stralsund,  Rostock),  the  keeping  of  loose  sheets 
similarly  preceded  the  keeping  of  books.  Originally,  all  legal 
transactions  made  known  to  the  officials  were  entered  in  these 
books  in  purely  chronological  order,  without  regard  to  their  con- 
tent; and  this  whether  they  were  of  private  or  of  public  char- 
acter, and  whether  they  referred  to  lands  or  to  chattels,  to  sales, 
pledges,  gifts  mortis  causa,  the  creation  of  annuities,  etc.  Later, 
however,  different  books  were  in  many  places  opened  for  the  dif- 
ferent classes  of  transactions,  in  the  interest  of  greater  clearness. 
Thus,  for  example,  a  special  inheritance  book  ("  liber  resigna- 
tionum  ")  was  separated  from  the  book  of  debts,  pledges,  and 
annuities  ("  liber  obligationum  et  censuum  ",  "  liber  impignora- 
tionum  et  reddituum  ").  And  so  with  others.  At  the  same  time 
the  limitation  of  the  books  to  single  municipal  divisions,  as  already 
adopted  in  Cologne,  found  extensive  imitation.  In  Hamburg, 
for  example,  each  parish  was  given  its  own  books;  -in  Munich 
they  were  given  to  the  four  quarters  of  the  iniier  and  the  four 
quarters  of  the  outer  city ;  in  Danzig,  to  the  old  and  to  the  new 
town.  In  the  Cologne  press-books,  moreover,  the  practice  was 
begun  as  early  as  the  1200  s  of  bringing  together  in  the  same  part 
of  the  book  all  entries  relating  to  one  piece  of  land,  thus  making 
possible  an  easy  examination  of  the  same.  In  this  manner  there 
originated  the  arrangement  of  "  real  "  folios,  which  were  probably 
first  utilized  in  Danzig:  the  books  were  arranged  according  to 
streets  and  pieces  of  land,  and  each  piece  of  land  was  given  a  special 
sheet  (or  a  number  of  sheets),  which  made  manifest,  so  far  as  pos- 
sible, its  complete  legal  status. 

In  the  open  country  the  model  of  the  town  books  was  not 

220 


Chap.  V]  THE   LAW   OF   LAND  :     POSSESSION  [§  30 

generally  followed  during  the  Middle  Ages.  The  rural  books  of 
that  period  were  in  the  main  mere  lists  of  the  charges  and  taxes 
imposed  upon  individual  peasant  holdings.  The  sole  exception 
was  the  development  as  early  as  the  1200  s  in  the  lands  cf  the 
Bohemian  crown  (Bohemia,  Moravia,  and  Upper  Silesia)  and 
in  Poland  of  the  institution  of  land-tablets  ("  Landtafel  "),  known 
as  the  "  jewel  "  of  those  lands.  It  is  a  disputed  question  whether 
this  was  based  upon  the  national  Slavic  law  or  due  to  the  influence 
of  the  German  law.  The  registers  ("  land-tablets  ")  in  Prague, 
Briinn,  Troppau,  and  Jagerndorf,  —  which  have  continued  to 
exist  without  essential  change  down  to  the  present  time,  and  have 
served  as  the  model  for  the  system  of  land  registers  introduced  at 
the  end  of  the  1700  s  into  the  other  lands  of  the  Austrian  crown, 
—  were  already  land  registers  in  the  modern  sense ;  for  an  entry 
in  them  was  a  precondition  to  the  legal  validity  of  land  transactions. 

This  principle  received  frequent  recognition  also  in  the  medieval 
German  town  laws.  Many  made  the  transfer  of  ownership  de- 
pendent upon  registration ;  notably  the  law  of  Liibeck  and  Bre- 
men, and  probably  also  that  of  Hamburg,  Hanover,  and  the 
Mecklenburg  group  of  towns.  Others  prescribed  the  requirement 
of  registration  for  the  creation  of  rights  of  pledge  and  other  real 
rights;  for  example  those  of  Munich,  Vienna,  Greifswald,  and 
Hamburg.  In  this  manner  the  book  entry,  which  was  originally 
merely  evidence  of  the  conclusion  of  a  legal  transaction  effected 
by  the  declarations  of  the  parties,  became  itself  the  validating 
act.  It  thus  took  over  the  functions  of  seisin  :  it  became  the  form 
in  which  were  expressed  all  legal  transactions  involving  land. 

(II)  The  Modern  Development. — The  institution  of  land  regis- 
ters was  powerfully  promoted  by  the  Reception.  According  to 
the  Roman  principles  that  were  taken  over  into  the  common  law, 
even  transactions  in  land  could  be  consummated  without  special 
forms  and  without  official  cooperation.  At  the  same  time  the 
regional  legal  systems  for  the  most  part  adhered  or  returned  to  the 
traditional  institutions ;  although  there  was  almost  ever>n\-here  a 
more  or  less  extensive  adaptation  of  these  to  the  Roman  system. 
On  the  other  hand,  in  very  recent  times,  for  the  most  part  before 
1900,  the  registry  system  has  again  received  general  recognition 
and  consistent  application  ;  first  in  State  law,  and  finally,  through 
the  new  Civil  Code  and  the  Imperial  Land  Registry  Ordinance  of 
March  24,  1897,  as  general  German  law.  In  Switzerland,  also, 
the  land  registry  system  has  been  introduced  without  qualification 
by  the  Civil  Code. 

221 


§  30]  THE    LAW    OF   THIXGS  [BoOK    II 

The  modern  statutes,  it  is  true,  adopted  at  first  different  view- 
points, thus  introducing  conditions  of  greatly  varying  character.' 
They  differed  particuhirly  in  that  some  liad  aik)pted  the  mortgage 
registry  system  and  others  the  land  registry  system  proper.  Where 
the  mortgage  registry  system  jjrevailed  the  books  were  primarily 
designed  to  give  security  for  credit  based  upon  land  ("  lleal- 
kredit  ").  Acquisition  of  title  was  not  dependent  upon  entry 
in  the  register ;  only  he  who  wished  to  place  a  hypothecary  charge 
upon  his  land  was  required  to  be  a  registered  owner;  that  is, 
registration  was  essential  only  for  the  creation  of  a  hypothec. 
Such  was  the  view,  notably,  of  the  Prussian  Hypothec  Ordinance 
of  December  20th,  17S3,  and  of  the  Prussian  "  Landrecht."  It 
was  adhered  to  until  the  year  1900  in  Baden,  Bavaria  to  the  right 
of  the  Rhine,  Alsace-Lorraine,  Rhenish  Hesse,  parts  of  Mecklen- 
burg, Saxe-Meiningen,  Saxe-Weimar,  Schwarzburg-Rudolstadt, 
and  Wiirttemberg;  and  until  1S95  by  Hamburg  and  Frankfort 
o.  ]\I.  Yet  even  within  most  of  these  regions,  registration  of  title 
generally  offered  greater  security,  and  might  even  be  required 
under  penalties  {e.g.  in  Franlvfort). 

More  and  more,  however,  the  land  registry  system  proper  came 
to  predominate ;  in  most  regions  again  in  the  form  of  single  land 
registers  which  included  a  record  of  all  real  rights.  Only  in  rela- 
tively few  legal  systems  (Nassau,  Baden,  Frankfort,  Hamburg, 
Hesse,  ]\Ieiningen,  and  Wiirttemberg)  were  special  land  registers 
prescribed  in  addition  to  mortgage  books.  The  pure  land 
registry  system  made  even  transfers  of  title  by  juristic  act  de- 
pendent on  a  book  entry.  In  such  cases,  therefore,  the  regis- 
ters also  afforded  information  regarding  the  condition  of  title. 
Among  the  States  in  which  this  system  was  practised  were 
Saxony,  since  the  statute  of  November  6,  1843;  Mecklenburg, 
whose  legislation,  —  especially  the  revised  Town-Book  Ordi- 
nance of  December  21,  1857,  and  the  act  relating  to  the  hy- 
pothecation of  crown  lands  of  Schwerin,  of  January  2,  1854,  — 
was  very  influential  in  the  development  of  the  modern  law ;  and 
finally,  Prussia,  with  its  important  statutes  of  May  5,  1872  (the 
Title  Transfer  and  Land  Registry  Acts). 

These  Prussian  statutes  have  been  adopted  as  the  basis  of  the 
new  imperial  legislation.  The  present  land  register  is  therefore 
designed  to  give  publicity  to  all  legal  rights  in  land  in  so  far  as 
these  are  subject  to  the  requirement  of  registration  ;  and  that  is 
the  case  in  by  far  the  great  majority  of  instances.  Only  a  few 
'  See  tho  detailed  table  in  Stohhe-Lehmann,  IT,  1,  104-1G7. 

222 


Chap.  V]  THE   LAW   OF   LAND:    POSSESSION  [§30 

legal  relations  —  possession,  the  rights  of  usufruct  of  husbands  and 
parents,  rights  in  lands  not  subject  to  registry,  etc.  —  lie  outside 
the  purview  of  the  land  registry  law.  And  only  such  changes  in 
real  rights  as  arise  independently  of  any  legal  agreement  to  that 
end  (as  for  example  acquisition  by  inheritance)  can  be  acquired 
or  created  without  registration.  This  rule  is  in  harmony  with 
the  earlier  Prussian  law.  On  the  other  hand  the  earlier  statutory 
systems  of  Saxony,  Hamburg,  Liibeck,  and  Mecklenburg  required 
registration  under  all  circumstances,  carrying  to  an  extreme 
the  idea  of  the  old  law  that  legal  rights  were  created  by  the  act 
of  entry.  From  this  they  deduced  the  further  consequence  that 
wherever  a  formally  correct,  but  materially  incorrect,  entry  or 
cancellation  had  been  made,  no  regard  might  be  paid  to  the  sub- 
stantial right  contradicting  it ;  and  that  a  person  thereby  injured 
should  be  given  only  a  personal  claim  for  restitution  of  his  right 
or  for  damages.  In  contrast  to  this  view  the  majority  of  other 
legal  systems  required,  as  a  condition  precedent  to  the  efficacy 
of  registration,  a  valid  real  ("  dinglicher ")  juristic  act  (the 
principle  of  substantial  —  "  materielles  "  —  consensus) ;  which 
in  cases  of  conveyance  of  title  and  imposition  of  charges  must 
consist  in  an  agreement  of  the  wills  of  the  parties  concerned  —  in 
other  words,  in  a  real  contract.  This  rule  also  has  been  adopted 
by  the  Civil  Code.  In  the  Prussian  law,  and  in  the  other  legal 
systems  related  to  it,  the  so-called  "  public  faith  "  of  the  land 
register  has  therefore  quite  another  meaning  than  in  those  systems 
which  recognized  the  unqualified  formal  validity  of  the  book-entry. 
For  the  latter  attributed  to  the  registry  the  power,  under  some 
circumstances,  of  producing  effects  destructive  of  a  substantial 
right.  A  third  person  acting  in  good  faith  should  according  to 
their  view  be  protected ;  he  shoukl  be  able  to  rely  absolutely 
upon  the  register.  If  a  person  entered  into  a  legal  agreement  with 
another  party  who  was  improperly  registered,  the  semblance 
existing  according  to  the  register  should  have  exactly  the  same 
effect  in  his  favor  as  if  it  were  not  a  mere  semblance;  in  other 
words,  the  same  effect  as  if  the  basis  of  substantial  right  sup- 
posedly underlying  the  entry,  but  actually  absent,  were  in  fact 
present.  It  is  true  that  according  to  the  Prussian  law  negligence 
excluded  good  faith,  and  that  the  public  faith  of  the  register  pro- 
tected only  such  third  persons  as  had  acquired  rights  for  \'alue. 
Both  provisions  have  been  abrogated  by  the  present  Civil  Code ; 
which  here  again,  however,  followed  the  Prussian  law  in  other 
respects.     It  denies  protection  only  in  case  of  actual  bad  faith, 

223 


§  30]  THE    LAW    OF   THINGS  [BoOK   II 

and  treats  rights  that  have  been  acquired  gratuitously  the 
same  as  those  acquired  for  vahie.  This  public  faith  of  the  land 
register,  thus  established  in  the  modern  law,  is  therefore  capable, 
under  certain  circumstances,  of  creating  a  purely  formal  right 
that  may  not  coincide  with  substantive  right.' 

Finally,  as  regards  the  physical  arrangement  of  the  register, 
most  modern  statutes  have  adopted  as  their  general  rule  the 
system  of  real  folios,  and  have  admitted  i)crsonal  folios  only  as 
exceptions,  namely  for  regions  of  particularly  disintegrated  hold- 
ings, and  when  no  confusion  is  to  be  feared  therefrom.  The 
national  Code  has  followed  the  same  rule.  It  was  usual  to  divide 
the  real  folios,  —  as  in  Prussia,  for  example,  —  into  a  title-sheet 
and  three  subordinate  parts,  the  first  being  devoted  to  a  record 
of  proprietary  transactions;  the  second,  of  perpetual  charges; 
and  the  third,  of  hypothecs  and  land  charges.  This  regulation 
of  the  internal  arrangement  of  the  land-book  folios  has  been  left, 
under  the  Civil  Code,  to  State  legislation.  Prussia,  for  example, 
has  retained  its  old  registry  system  with  some  few  alterations. 
There  are  also  special  registry  officials,  whose  training  has  been 
similarly  left  to  the  State  law ;  the  local  courts  ("  Amtsgerichte  ") 
serve,  for  the  most  part,  as  registry  offices.  An  important  inno- 
vation made  by  the  new  and  formal  law  of  land  registry  is  founrl 
in  the  fact  that  whereas  until  its  adoption  there  was  only  a 
secondary  liability  on  the  part  of  the  State  (as  in  Prussia,  Ba- 
varia, Mecklenburg,  and  Hamburg),  or  no  liability  whatever  (as 
in  Wiirttemberg,  Ilesse,  and  Nassau),  for  negligent  or  intentional 
violations  of  duty  on  the  part  of  the  registry  officials,  responsi- 
bility for  damages  rests,  since  the  adoption  of  the  new  sj^stem, 
exclusively  upon  the  State  or  other  political  body  in  whose  service 
the  official  acts  (Land  Registry  Ordinance,  §  12),  the  right  of  the 
State  to  save  itself  harmless  at  the  expense  of  such  officials  being, 
of  course,  left  unaffected  thereby. 

1  Gierke,  "Privatrecht",  II,  320. 


224 


Ch.^.  VI] 


THE    LAW    OF   LAND  :     OWNERSHIP 


[§31 


Chapter  VI 

THE   LAW  OF  LAND   {Continued) 

Part  II.     The  Ownership  of  Land 


§  31.     The  Concept  of  Ownership. 
I.   The  Medieval  Law. 

(1)  Antiquity  of  the  con- 

cept    and     of     its 
designations. 

(2)  Ownership    and    real 

rights. 

(3)  Ownership  and  physi- 

cal control. 
II.    Influence   of   the   Recep- 
tion. 
§  32.     Divided  Ownership. 

I.    Conditions  of  Fact. 
II.    The  Legal  Theory. 
§  33.     Community  Ownership. 
I.    The  Medieval  Law. 

(1)  Ownership  "in  collec- 

tive hand." 

(A)  Pure  form. 

(B)  Weaker  forms. 

(2)  Ordinary       collective 

ownership. 

(A)  Assoeiational  col- 

lective   owner- 
ship. 

(B)  Corporate  collec- 

tive       owner- 
ship. 

(3)  Co-ownership  by 

shares. 
II.    The     Modern     Develop- 
ment. 

(1)  The    Reception    and 

the  older  Germanic 
theory  of  collective 
ownership. 

(2)  The  increasingly  wide 

occurrence  of  com- 
munity ownerships 
as  an  actual  legal 
institute. 

(A)  Ownership  in  col- 

lective hand. 

(B)  Corporate       col- 

lective   owner- 
ship. 

(3)  The  present  law. 
§'34,     The    Acquisition    of  Owner- 
ship hy  Contract. 


§35 


36. 


I.    The  Oldest  Law. 

(1)  The  original  single  act 
performed  upon  the 
land. 

(A)  The      agreement 

to  alienate. 

(B)  DeUvery    of    the 

land. 
(2)  Investiture  away  from 
the  land. 

(A)  Release  in  court. 

(B)  "Investitura  per 

cartam." 
II.    The  Medieval  Law. 

(1)  Relaxation      of      old 

forms. 

(2)  Increasingly     judicial 

character. 

(3)  Registration. 

III.  Development     since     the 

Reception. 

(1)  Delivery      associated 

Tvath     formal     con- 
tract. 

(2)  Delivery     associated 

with  registry. 

(3)  Release  in  court. 

(4)  Transcript  svstem. 

IV.  The      Latest     Stage     of 

Development. 
Acquisition     of      Ownership 
otherwise    than    by    Con- 
tract. 
I.    Occupancy. 
II.    Positive  Prescription. 

III.  Inheritance. 

IV.  Expropriation. 

(1)  History. 

(2)  General    features    of 

the  existing  law. 
General     Restrictions    upon 

Ownership. 
I.    Source     and     Classes     of 
General       Restrictions 
upon  Ownership. 
II.    Restrictions  in  the  Public 
Interest. 
(1)  Upon  dispositive 

powers. 


225 


§31] 


THE    LAW    OF   THINGS 


[Book  II 


(2)  Upon  the  exercise  of 

rifxhts  of  ownership. 

III.    Restrictions     imposed   in 

the  Interest  of  Private 

Individuals. 

(1)  Upon  dispositive 

powers. 

(2)  Upon  tlie  exercise  of 

rijifhts  of  ownership. 
§  37.     Restrictions       imposed       by 
Rights  of  Vicinage. 
I.    Ways  of  Necessity. 
II.    "Hammer"  or  "ladder" 
Rights. 

III.  Rights    of     "over-hang" 

and  "over-fall." 

(1)  Rights       of       "over- 

hang." 

(2)  Rights  of  "over-fall." 

IV.  As  respects  the  Improve- 

ment of  Land. 

(1)  Window    rights    and 

rights  of  light. 

(2)  Disagreeable  or  dan- 

gerous structures. 

(3)  Eaves-drip. 

(4)  Boundaries. 

(5)  Encroaching  improve- 

ments. 

(6)  "Spite "-structures. 
V.    Discharge       of       Matter 

and      transmission      of 
Vibrations. 
§  38.     Restrictions     originating    in 

Regalities,  generally. 
§  39.     Restrictions     originating     in 
the  Regalities  of  the  Forest 
Law  and  Hunting  Law. 
I.    The  Forest  Law. 
II.    The  Himting  Law. 
§  40.     Restrictions     originating     in 
Regalities   of   the   Law   of 
Waters,       Fishery,       and 
Dikes. 
I.    The  Law  of  Waters. 

(1)  The   older   Germanic 

law. 

(A)  Public  rivers. 

(B)  Private  waters. 

(2)  The    modern    law   of 
waters. 

(A)  Public  rivers. 

(B)  Private  rivers. 
II.    The  Law  of  Fisheries. 

(1)  The  older  law. 

(2)  The  modern  law. 
III.    The  Law  of  Dikes. 

§  41.     Restrictions    originating    in 
the     Law    of    Mines    and 
Salterns. 
I.    The  Mining  Law. 
(1;  History. 


§42. 


§43. 
§44. 


(A)  Theminingregal- 

ity. 

(B)  Liberty   of    min- 

ing. 

(C)  Modes      of      ex- 

ploitation. 

(D)  The  share- 

holders'    asso- 
ciations of  the 
older  law. 
(2)  The  Modern  Law. 

(A)  Alodern     mining 

legislation. 

(B)  Leading        prin- 

ciples of  pres- 
ent mining 
law. 

(a)  "License" 

minerals. 

(b)  Right  to 

prospect. 

(c)  The  claim. 

(d)  The  lease. 

(e)  Riglits     and 

duties     of 
mine- 
owners. 

(f)  The   modern 

mining 
company. 

(g)  The        legal 

status      of 
the  miners. 
II.    The  Law  of  Salterns. 
Restrictions  upon  Alienation 
due  to  Co-i"ights  of  Rela- 
tives. 
I.    Rights  in  Expectancy  and 
of  Co-alienation. 

(1)  Rights  in  expectancy. 

(2)  Rights    of    co-aliena- 

tion. 

(3)  Weaker  forms. 

II.  Entailed     family    estates 
of  the  greater  nobility. 

III.  Family         trust-entails 
(fideicommissa). 

(1)  History. 

(2)  Legal  i)rincij)les. 

(A)  Cn>ation  of  fidei- 

commissa. 

(B)  The     object     of 

fideicommissa. 

(C)  Ownership      and 

real  rights  of 
holders  of  fu- 
ture interests. 

(D)  Alienation      and 

charging. 

(E)  Succession  under 

fideicommissa. 

(F)  Termination. 


226 


Chap.   VI]  THE    LAW    OF    LAND  :     OWNERSHIP  [§  31 

§  31.    The    Concept    of     Ownership.     (I)    The    Medieval    Law. 

(1)  Antiquity  of  the  Concept  and  of  its  Designations.  —  The  con- 
cept of  ownership  as  the  fullest  right  that  one  can  have  in  a  thing/ 
as  "  a  right  directed  to  the  dominion  over  a  thing  as  an  entirety  ",- 
was  known  from  the  earliest  times  not  merely  to  the  Germanic  law 
of  chattels  but  also  to  the  Germanic  land  law.  "  Eigen  ",  a  sub- 
stantive participle  of  the  verb  "  eigan  "  =  "  haben  ",  to  have,  is 
a  word  of  the  common  Germanic  stock  that  was  applied  to  lands 
to  indicate  that  they  belonged  to  somebody ;  that  they  were  ob- 
jects "  had  "  or  held  by  somebody.  In  the  Latin  sources  use  was 
made  of  the  expressions  "  dominium",  "proprietas  ",  "proprium." 
It  was  a  favorite  practice,  also,  to  enumerate  exhaustively  in 
the  documents  the  different  powers  that  an  owner  enjoyed.  The 
German  words  "  Eigenschaft  "  and  "  Eigentum  "  first  appear  in 
the  1200  s;  the  earliest  authority  for  "  egindum  "  occurs  in  a 
Cologne  archival  document  of  1230, 

(2)  OwnersliiiJ  and  Real  Rights.  —  The  conception  of  owner- 
ship, however,  had  not,  by  any  means  the  sharp  definition  in  the 
medieval  land  law  which  is  familiar  to  us  in  the  Romanized 
modern  law.  In  particular,  it  was  not  in  principle  dissociated 
from  and  opposed  to  restricted  real  rights.  The  reason  for  this 
lay  in  the  forms  of  the  actual  economic  relations  of  that  time, 
upon  which  the  growth  and  form  of  legal  ideas  was  dependent. 
As  has  been  mentioned  {supra,  p.  115)  individual  ownership  in 
house  and  homestead  had  certainly  been  developed  at  an  early 
day ;  in  the  arable  laiid,  on  the  contrary,  only  after  the  period 
of  the  tribal  migrations ;  while  in  the  case  of  the  commonties 
("  AUmende  ")  the  old  collective  ownership  has  been  dissolved 
only  in  very  recent  years.  Moreover,  even  after  the  development 
of  individual  ownership  the  old  communism  continued  to  influ- 
ence the  rights  of  associations,  of  neighbors,  and  of  kin.  To 
all  this  was  added  the  development  of  land  tenancies,  which  led 
to  a  wide  distribution  of  the  economic  produce  (rents  and 
profits)  of  the  soil  among  different  persons,  and  made  exceptional 
the  union  of  all  rights  of  enjoyment  in  one  hand.  It  must  be 
remembered  that  until  far  into  the  Middle  Ages  the  value  of 
land  lay  solely  in  such  produce;  its  utilization  in  exchange 
played  almost  no  role  whatever. 

This  is  the  exi)lanation  of  the  fact  that  the  conception  of  a 
general  legal  and  physical  control,  of  a  general  right  of  control 

^  Brunner,  " Grundziige "  (5th  ed.),  197. 
2  Gierke,  "Privatrecht",  II,  347. 

227 


§31]  THE    LAW    OF   THINGS  [BoOK   II 

witlunit  more  definite  description,  constituted  for  a  long  time  the 
final  and  the  central  idea  in  the  medieval  land  law.  This  idea  of 
a  right  of  control  capable  of  varying  limitations  and  gradations 
without  being  thereby  atVected  in  its  essence,  was  for  a  time  quite 
sufficient  to  classify  such  legal  relations  to  the  Soil  as  actually  oc- 
curred. They  all  ai)pcarcd  solely  as  degrees,  differing  in  their 
content,  of  the  one  universal  fact  of  a  physical  dominion  over,  and 
directed  to  the  usufruct  of,  a  material  thing ;  all  of  which  rights, 
moreover,  were  equally  visible  under  diifcrcnt  forms  of  seisin  in 
lands.  From  the  naive  medieval  point  of  view  which  concerned 
itself  solely  with  the  economic  produce  of  the  land,  the  right  of 
ownership  of  one  wlio  had  received  a  piece  of  land  as  a  gift,  and 
who,  under  the  Germanic  law  of  gifts,  was  not  allowed,  without 
the  assent  of  the  giver,  either  to  alienate  or  to  pass  it  by  descent, 
was  not  essentially  diflerent  from  the  right  of  him  in  whose  favor 
there  was  created  a  usufructuary  right  in  a  piece  of  land.  Just 
as  little  did  it  make  any  tangible  and  practical  difference,  whether 
the  limitations  imposed  upon  the  usufructuary  rights  of  the  oc- 
cupant of  land  originated  in  nuitual  adjustment  through  legal 
forms,  or,  as  might  be  the  case,  through  the  rights  of  the  asso- 
ciation, of  neighbors,  or  of  the  kin,  and  so  on,  above  mentioned. 
Hence  it  was  that  men  did  not  scruple  to  employ  such  expressions 
as  "  dominus  ",  "  res  sua  ",  "  proprietas  ",  "  Eigentum  ",  and 
others,  in  reference,  similarly,  to  one  who  possessed  merely  a 
limited  right  of  usufruct,  of  dower  ("  Leibzucht  "),  of  holding 
lands  by  descent  as  a  rentaler,  or  of  pledge.  The  Sachsen- 
spiegel  still  calls  him  to  whom  "  dat  gut  to  horet  "  the  lord 
or  master  of  the  thing,  whether  he  had  the  ownership  or 
enjoyed  only  a  limited  real  right  in  it. 

Gradually,  however,  and  already  in  the  ]\Iiddle  Ages,  there 
came  about  a  refinement  of  the  point  of  view.  Just  as  proprietary 
seisin  had  been  contrasted  with  the  various  cases  of  limited  physi- 
cal seisin,  so  men  learned  to  distinguish  the  right  of  ownership 
from  other  real  rights.  Especially  in  the  case  of  feudal  and  ma- 
norial tenures  the  right  of  the  landlord  ("  proprietas  ",  "  allod  ")  ^ 
was  contrasted  from  the  beginning,  even  in  terminology,  witli  the 
right  of  the  tenant  ("  precarium  ",  "  feudum  ").  It  is  indeed 
true,  as  has  been  already  remarked  (sujira,  p.  189),  that  the  Ter- 
ritorial law  did  not  at  first  give  the  least  consideration  to  the 
right  of  feudal,  servitary,  or  manorial  tenants.  On  the  contrary 
this  found  recognition  at  first  solely  within  the  special  boundaries 

'  V.  Schwerin,  art.  "allod"  in  Hoop's  "Reallexikon",  I  (1911),  G5. 

228 


Chap.  VI]  THE   LAW   OF  LAND  :     OWNERSHIP  [§  31 

of  the  feudal,  servitary,  and  manorial  law :  namely,  as  "  Eigen  " 
or  ownership  in  the  feudal,  servitary,  or  manorial  sense,  and  it 
was  limited  by  the  landlord's  supreme  right  of  control  in  a  manner 
not  very  unlike  that  in  which  ownership  under  the  Territorial 
law  was  limited  by  the  superior  power  of  the  State.  Later, 
however,  the  Territorial  law  also  recognized  these  rights  of  ten- 
ancy as  independent  rights  in  things,  just  as  it  had  itself  long  since 
devefoped  its  own  peculiar  tenancies,  both  free,  peasant,  and 
burgh  al. 

The  distinction  between  the  right  of  ownership  and  a  limited 
real  right  (rights  of  tenancy,  of  usufruct,  of  pledge,  of  dower,  etc.), 
thus  marked  out  and  later  everywhere  enforced,  nevertheless 
never  caused  the  essential  unity  of  all  rights  of  control  in  lands 
to  be  lost  sight  of.  The  right  of  ownership  which  corresponded 
to  proprietary  seisin,  —  namely,  that  right  which  was  directed 
to  the  control  of  a  thing  in  all  respects,  —  was  distinguished  from 
real  rights  that  appeared  in  forms  of  limited  seisin  only  in  its  extent, 
its  contents,  and  its  purpose,  and  not  in  its  essence.  It  remained 
a  real  right  along  with  other  real  rights,  and  these  were,  to  use 
Gierke's  apt  expression,  nothing  else  than  "  splinters  of  owner- 
ship that  had  become  independent."  ^  The  number  of  these  real 
rights  could  be  increased  at  will,  since  every  element  that  entered 
into  the  right  of  ownership  was  capable,  in  principle,  of  such  a 
segregation,  x^ll  rights  that  could  assume  the  form  of  seisin  were 
therefore  real  rights;  and  so,  for  example,  the  right  of  a  lessee 
and  hirer,  the  right  of  a  guardian  in  his  ward's  property  of  which 
he  was  seised,  and  so  forth.  Nor  was  even  a  physical  seisin  re- 
quisite in  all  this,  for  those  rights  that  were  expressed  in  a  mere 
juristic  seisin  thereby  acquired  the  character  of  materiality  ('  'Ding- 
lichkeit  "  —  "  thinglikeness  "),  —  for  example,  reversionary  rights 
in  land,  or  to  shares  in  the  produce  of  land. 

For  another  reason  there  could  be  no  talk  of  a  contrast,  in 
principle,  between  rights  of  ownership  and  (lesser)  real  rights; 
namely,  because  the  idea  of  the  limitability  of  the  right  of  owner- 
ship was  retained,  and  regarded  as  consistent  with  its  nature. 
Landed  ownership  existed  in  manifold  gradations:  besides  an 
ownership  or  holding  that  was  full,  genuine,  free,  direct,  and 
so  on,  and  which  included  within  itself  all  those  rights  of  control 
that  were  recognized  in  the  state  of  economic  culture  and  under 
the  actual  circumstances  which  then  prevailed,  there  existed  the 
"  ownership  "  ("  Eigen  ")  that  was  encumbered,  liable  to  rent, 
i"Privatrecht",  II,  359. 
229 


§  31]  THE    LAW    OF   THINGS  [BoOK   II 

etc.,  and  which  was  restricted  within  more  or  less  shar]>ly  defined 
limits  by  the  co-ri<i;hts  of  other  persons.  And  a  fixed  l)oundary 
between  this  qualified  or  lesser  ownership  and  limited  real  rights 
did  not  exist,  at  least  in  an  economic  sense. 

(3)  Ownership  and  Plu/.'iica}  Control.  —  The  concept  of  physical 
control  over  things,  out  of  which  there  were  only  gradually  de- 
veloi)ed  (another  illustration  of  the  rule  that  legal  institutions  are 
only  gradually  ditl'erentiatcd)  the  distinct  conceptions  of  the  right 
of  property  and  of  restricted  real  rights,  was  evidently  a  more 
comprehensive  concept  than  these,  in  so  far  as  the  ideas  of  owner- 
ship and  control  still  existed  unsevered  within  it.  The  original 
unity  of  public  and  private  law  clearly  appeared  in  it;  and  the 
expressions  "  dominium  "  and  "  dominatio  "  (also  "  ditio  ") 
which  are  used  in  the  documents,  designated  at  once  a  relation- 
ship of  control  in  the  most  general  sense,  the  nature  of  which 
was  by  no  means  necessarily  peculiar  to  the  j^rivate  law,  and  owner- 
ship in  the  proper  sense. ^  The  right  that  pertained  in  the  earliest 
times  to  groups,  large  and  small,  in  the  districts  that  they  occupied, 
was  in  the  same  way  a  right  of  political  dominion  and  a  private 
legal  right  of  property ;  and  wherever  such  a  collective  right  per- 
sisted, as  in  the  commonties,  it  long  preserved  this  double  char- 
acter. Neither  did  the  individual  rights  in  the  soil  that  later  de- 
veloped wholly  merge  in  a  simple  right  of  property,  if  only  for 
the  reason  that  they  remained  the  basis  of  the  individual's  legal 
status,  and,  in  particular,  determined  his  personal  status.  The 
most  potent  cause  of  this  confusion  of  concepts  of  public  and  of 
private  law  was  the  development  of  feudalism,  which  in  fact  was 
based  precisely  upon  this  union  of  seigniorial  power  and  landed 
ownership  in  the  hands  of  the  land-lord.  Inasmuch  as  rights 
in  land  were  subjected,  as  incorporeal  things,  to  the  principles  of 
the  law  of  things  {supra,  p.  KkS),  —  which  now  attributed 
ownership  to  them,  as  it  had  formerly  attributed  seisin  to  them, 
—  every  right  of  lordship  that  related  to  a  definite  territory 
could  be  treated  as  the  result  of  a  real  right  in  the  soil ;  which 
fact  eventually  led  in  Germany  to  the  theory  of  the  "  dominium 
eminens  "  of  the  State,  and  in  England  to  the  assumption  of  a 
supreme  ownership  in  all  land  inhering  in  the  king.  The  exten- 
sion of  the  ownership  concept  to  incorporeal  things  was  retained  ; 
but  the  separation  of  lordship  from  property  in  the  sense  of 
private  law  was  begun  at  the  end  of  the  Middle  Ages,  first 
of  all  in  the  cities,  although  without  attaining  to  a  complete 
^  Stutz  in  "Festschrift  fur  O.  Gierke",  1228. 
230 


Ch.\P.   VI]  THE    LAW    OF   LAND  :     OWNERSHIP  [§  31 

emancipation  from  the  old  views,  which  long  remained  alive  in 
the  institutions  of  the  paternalistic  State. 

(II)  Influence  of  the  Reception.  —  The  Roman  conception  of 
ownership  was  of  a  different  nature  from  that  of  the  medieval 
law.  According  to  the  Roman  law,  ownership  was  an  unlimited 
legal  power.  But  it  is  a  mistaken  view,  albeit  one  widely  held, 
that  this  legal  power  was  "  a  dominion  without  Ihnitations  or 
duties,  abandoned  to  individual  caprice."  Moreover,  the  Roman 
law,  like  the  German,  was  originally  not  blind  to  the  social,  impli- 
cations of  landed  property.  It  was  only  in  the  imperial  period 
that  the  ownership  concept  suffered  a  transformation  in  an  ab- 
solutistic  sense ;  yet  even  then  the  limited  character  of  owner- 
ship was  never  denied,  and  no  confusion  ever  resulted  between 
public  and  private  legal  rights.  The  acute  insight  of  the  Roman 
jurists  perceived,  however,  the  contrast  in  principle  between  that 
right  of  ownership  which  confers,  in  and  of  itself,  full  legal  con- 
trol (notwithstanding  that  it  might  be  a  limitable,  and  frequently 
enough  was  actually  a  limited,  right),  and  those  "  iura  in  re 
aliena  "  which  were  in  their  nature  merely  limited  powers,  and 
of  which  only  a  small  number  were  known.  Upon  this  contrast 
they  built  their  entire  law  of  things :  ownership  and  real  rights 
of  usufruct  were  not,  as  in  the  medieval  law,  essentially  identical, 
but  were  powers  fundamentally  different  in  their  nature. 

This  distinction  between  the  two  conceptions  was  adopted  with 
the  Reception ;  though  to  be  sure  it  proved  impossible  to  realize 
in  practice  the  clearness  of  the  Roman  division.  At  the  same 
time  the  absolutistic  element  in  the  Roman  idea  of  ownership 
was  gladly  accepted  in  Germany ;  because,  however  opposed  it 
might  be  to  native  habits  of  thought,  it  could  be  made  serviceable 
to  manifold  necessities  and  ambitions.  It  was  the  influence  of 
the  natural  law  doctrines  of  the  1700  s,  and  especially  of  the 
ideas  that  triumphed  in  the  French  Revolution,  that  gave  origin 
to  the  ownership  concept  of  the  modern  common  law,  which 
first  introduced  that  exaggeration  of  individual  interests  above 
those  of  society  which  has  been  mistakenly  ascribed  to  the  Roman 
law.  It  found  expression  in  the  formula,  which  was  adopted  even 
in  modern  codes  (as  for  example  in  the  Prussian  "  Landrecht  " 
and  the  Code  Civil),  that  ownership  is  an  absolute  and  unlimited 
power. 

The  acceptance  of  the  Roman  idea  of  ownership,  since  this 
conferred  power  exclusively  pertaining  to  private  law,  has  un- 
questionably facilitated  a  desirable  segregration  of  those  elements 

231 


§  31]  THE    LAW    OF   THINGS  [BoOK    IT 

of  ownership  which  were  derived  from  pubhc  law,  and  had 
theretofore  ehuig  to  it ;  and  has,  in  so  far,  furtliered  endeavors 
directed  toward  the  destruction  of  the  paternaUstic  and  feudal 
order  of  society.  On  the  other  hand,  the  exaggt^ration  of  the 
indivitlualistic  view,  and  the  treatment  of  all  real  usufructuary 
rights  as  Roman  "  iura  in  re  aliena  "  has  led  to  grave  evils,  and, 
in  i)articular,  has  in  many  places  completely  deprived  the  lower 
riu'al  pojjulation  of  their  property  rights.  These  e^•ils  have  been 
lessened  by  the  circumstance  that  remnants  of  the  native  legal 
institutes  and  ideas  have  everywhere  retained  vital  influence. 
INIost  local  legal  systems  preserved  the  fundamental  division  of 
landed  and  chattel  ownership,  the  recognition  of  a  graduated 
and  limited  ownership,  a  wealth  of  real  rights  in  addition  to  owner- 
ship, and,  above  all,  the  extension  of  the  concept  of  ownership  to 
rights,  —  which  last,  moreover,  has  been  given  such  broad  meaning 
that  in  the  Prussian  and  in  the  Austrian  codes,  for  example, 
there  is  talk  even  of  the  "  ownership  "  of  contractual  claims. 

The  new  Ci\il  Code  has  adopted,  in  its  essentials,  the  concep- 
tion of  ownership  that  was  held  by  the  common  law.  At  the  same 
time  the  native  law  continues  to  be  felt  in  many  ways ;  for  ex- 
ample, in  the  wide  scope  of  the  limitations  upon  ownership  which 
are  recognized,  and  in  the  greater  number,  although  now  again 
definitely  limited,  of  real  rights.  It  has  been  preserved  to  even 
greater  extent  as  regards  matters  reserved  to  State  law.  With 
the  rule  of  the  Civil  Code  (§  903)  that  the  owner  may  dispose 
of  a  thing  as  he  chooses,  so  far  as  the  statute  law  and  the  rights 
of  third  parties  do  not  forliid,  and  that  he  can  exclude  others 
from  all  interference  therewith,  the  Swiss  Code  (§  041)  agrees. 

§  32.  Divided  Ownership.  (I)  Conditions  of  fact.  —  The  pe- 
culiarities noted  above  (p.  227)  in  the  land -holding  relations  of  the 
IMiddle  Ages,  —  namely,  the  distribution  of  the  produce  of  the 
land  among  several  persons  entitled  thereto,  which  was  becoming 
the  rule,  and  the  consequent  peculiar  conception  of  the  right  of 
property  as  a  form  of  physical  dominion  distinguished  only  in 
extent,  and  not  in  essence,  from  other  limited  rights,  —  naturally 
led  to  a  conception  of  oivnership  as  partitioned  out  among  various 
persons  whose  rights  were  of  varying  strength,  and  who  were 
therefore  not  equals  but  arranged  in  a  hierarchy :  a  conception 
which  from  the  standpoint  of  the  Roman  law  was  quite  im- 
possible. Here  again  the  development  of  distinct  bodies  of  class 
and  local  law  ("  Rechtskreise  ")  was  of  great  influence.  For 
inasmuch  as  the  vassals  and  the  serfs  possessed,  in  their  respective 

232 


Chap.  VL]  THE   LAW   OF   LAND  :     OWNERSHIP  [§  32 

feudal  and  rental  holdings  within  the  limits  of  the  feudal  and 
manorial  laws,  approximately  the  same  privileges  that  freemen 
enjoyed  in  their  holdings  under  the  Territorial  law,  they  could 
perfectly  well  be  regarded  as  owners,  if  not  according  to  the  Ter- 
ritorial law,  at  least  according  to  the  feudal  and  manorial  law ; 
and  their  rights,  as  feudal  and  manorial  proprietorship,  could  be 
contrasted  with  the  ownership  of  the  landlord  under  the  Terri- 
torial law.  When  their  legal  status  was  also  recognized,  later, 
under  the  Territorial  law,  men  clung  to  the  old  view,  and  spoke 
of  ownership  as  divided  between  the  lord  and  the  usufructuary; 
they  spoke  as  if  the  same  land  might  be  of  many  lords  or  of  many 
liegemen. 

(II)  The  Legal  Theory.  —  These  actual  conditions  and  views, 
—  which  were  natural  products  of  the  medieval  system  of  land- 
holding,  and  were  especially  closely  related  to  the  fact  that  that 
system  was  bound  together  by  the  principles  of  feudal  law,  — 
were  first  brought  within  the  formulas  of  a  legal  theory  by  the 
Glossators,  in  Italy.  They  employed  in  their  theory  the  concepts 
and  terms  of  the  Roman  law,  without  remarking  what  violence 
they  did  to  these.  But  since  their  doctrine  nevertheless  harmo- 
nized with  the  actual  conditions  of  the  time,  it  quickly  acquired 
great  influence  despite  its  inconsistency  with  the  sources,  and 
maintained  itself  down  into  modern  times. 

From  the  fact  that,  because  the  emph}1:euta  and  the  super- 
ficiary exercised  a  physical  dominion  that  nearly  approached 
ownership,  the  Roman  law  gave  them,  not  it  is  true  a  proprietary 
action  proper,  the  "  rei  vindicatio  directa  ",  but  a  corresponding 
"  utilis  rei  petitio  ",  the  conclusion  was  drawn  that  the  "  actio 
directa  "  was  based  upon  a  "  ius  directum  "  and  the  "  acto  utilis  " 
upon  a  "  ius  utile."  The  owner  would  therefore  have  a  "  do- 
minium directum  ",  and  the  emphyteuta  and  the  superficiary  a 
"  dominium  utile."  There  came  thus  to  be  recognized  two  "  do- 
minia  ",  although  of  different  strength,  over  the  same  object. 
And  very  soon  these  conceptions  were  carried  over  into  feudal 
relations  :  to  the  feudal  lord  was  ascribed  the  "  dominium  direc- 
tum ",  to  the  vassal  the  "  dominium  utile  "  in  the  fief.  This 
terminology  seemed  the  more  natural  because  the  word  "  domi- 
nium "  was  already  used  in  association  with  the  German  words 
"  Fug  "  (privilege)  and  "  Recht  "  (right,  law)  in  order  to  char- 
acterize that  position  of  lordship  which,  under  the  feudal  law, 
was  occupied  not  merely  by  supreme  lords  but  also  by  their 
vassals,  as  mesne  lords  ("  Aftervasallen  "),  over  their  liegemen. 

233 


§  32]  THE    LAW    OF   THINGS  [BooK   II 

The  lower  tenures  were  next  interj^reted  in  the  same  way,  and 
finally,  in  all  cases  where  ownership  and  real  rights  of  usufruct 
existed  in  one  piece  of  land,  men  came  to  speak  of  "  dominium 
directum  "  and  "  utile  ",  or  of  "  over  "  (superior)  and  "  under  " 
(subordinate)  ownership. 

The  Italian  doctrine  found  its  way  into  Germany  in  the 
Middle  Ages.  It  finally  acquired  an  unqualified  dominance 
in  legislation,  in  the  courts,  and  in  legal  literature.  The  Prus- 
sian "  Landrecht  "  and  the  Austrian  Code  undertook  to  give  it 
new  life  by  ascribing  to  the  "over "-owner  so-called  " Proprietat ", 
the  right  to  the  substance  of  a  thing,  and  to  the  "  under  "-owner 
at  once  a  co-ownership  in  that  "  Proprietat  "  and  an  exclusive 
ownershi])  in  the  usufruct. 

In  the  meantime,  however,  the  real  foundation  of  these  ideas 
had  been  removed,  and  they  were  thereby  condemned  to  disap- 
pearance. Already  in  the  Middle  Ages  there  had  set  in  in  the 
cities  a  movement  which  ultimately  led  to  an  almost  complete 
abolition  of  "  over  "-ownership,  and  assured  to  the  "  under  "- 
owner,  who  had  theretofore  enjoyed  mere  rights  of  usufruct,  the 
whole  ownership,  as  this  was  understood  in  the  private  law. 
Modern  agrarian  legislation  has  swept  away  the  last  traces  of  the 
old  "  over  "-ownership.  This  is  the  reason  why  the  Code  Civil 
had  not  a  word  to  say  of  this  whole  institution  of  divitled  owner- 
ship, which  sprang  from  a  medieval-feudal  legal  order  that  it  no 
longer  recognized.  The  new  German  Civil  Code,  following  the 
Saxon,  has  likewise  done  away  with  it  (by  failing  to  adopt  it), 
save  in  so  far  as  continued  existence  was  guaranteed  by  the  Code 
(EG,  §§  59,  63,  184)  to  the  slight  remnants  that  had  been  preserved 
down  to  present  times  in  the  legal  systems  of  the  States ;  as  for 
example  in  fiefs,  family  "  fideicommissa ",  and  peasant  holdings. 
[Moreover,  the  future  creation  of  divided  ownership  has  been  es- 
pecially forbidden  by  statute  in  a  number  of  German  States,  as 
for  example  by  the  Prussian  constitution. 

That  the  whole  doctrine  was  irreconcilable  with  the  concepts 
of  the  classic  Roman  law  was  shown  by  the  German  Romanistic 
jurisprudence  of  the  1800  s,  although,  of  course,  that  did  not  prove 
that  it  had  no  excuse  for  existence. 

§  33.  Community  Ownership.  (I)  The  Medieval  Law.  —  Even 
after  the  development  of  individual  ownership  in  land,  there  lived 
on  in  the  medieval  law,  as  an  after-effect  of  the  collective  owner- 
ship of  the  soil  that  earlier  existed,  the  idea  of  collective  rights  in 
the  soil  inherent,  at  the  same  time  and  in  the  same  degree,  in  va- 

234 


Chap.  Yl]  THE    LAW    OF    LAND  :     OWNERSHIP  [§  33 

rioiis  persons.  This  idea  was  richly  developed  under  various 
forms.     The  chief  of  these  forms  were  the  following. 

(1)  Ownership  "  in  Collective  Hand  "  ("  Eigentum  zu  gesamter 
Hand  ")•  —  (A)  Pure  form.  —  In  all  personal  groups  controlled 
by  the  principle  of  "  collective  hand  "  {supra,  p.  140  et  seq.) 
there  existed  a  collective  right  of  the  group  members,  which 
right  acquired  its  peculiar  features  from  this  community  of  the 
private  law,  resting  upon  an  original  or  a  still  continuing  family 
unity.  It  found  characteristic  expression  jn  two  rules  that  have 
already  been  referred  to.  The  one  was  that  no  one  of  the  co- 
owners  could  dispose,  by  himself  alone,  of  either  the  whole  or  any 
part  of  the  common  property,  whether  by  act  inter  vivos  or  upon 
death.  On  the  contrary,  only  all  the  co-owners,  acting  together 
"  as  with  one  hand  "  ("  mit  gesamter  Hand  ")  could  dispose 
either  of  the  whole  or  of  a  part.  And  although  the  right  of 
the  individual  might  be  regarded  at  the  same  time  as  his 
share  or  quota  in  the  collective  property,  —  and  in  truth  a  com- 
munity, whether  in  an  entire  estate  or  in  a  single  piece  of  property, 
is  not  easily  conceivable  apart  from  shares  of  individual  share- 
holders,^ —  nevertheless  he  enjoyed  no  dispositive  power  over 
such  share,  but  was  absolutely  bound  in  relation  to  it  by  the  com- 
mon will  of  all.^  Only  when  the  bond  that  joined  the  members 
into  a  legal  group  disappeared,  could  the  idea  of  shares,  till 
then  inactive  and  inconspicuous,  become  effective  ^ :  the  co-owner 
who  abandoned  the  group  had  a  claim  to  a  quota  corresponding 
to  his  co-right,  which  had  until  then  been  undifferentiated. 

The  other  rule  that  characterized  ownership  "  in  collective 
hand  "  was  this,  that  the  estate  left  by  a  decedent  member  of  the 
community  was  not  lost  to  the  community,  but  accrued  to  the 
other  commoners,  —  save  that  there  was  generally  allowed  to 
the  children  of  the  dead  member  their  lawful  share  of  the  inheri- 
tance :  they  were  received  in  his  stead  into  the  community,  with 
a  right  in  expectancy  to  such  a  quota.  With  this  exception 
survivorship  took  place  in  favor  of  the  remaining  commoners, 
who  continued  by  themselves  the  collective-hand  relationship. 
Although  such  communities  of  collective  hand  were  generally 
intended  for  permanent  existence,  indivisibility  of  the  collective 
property  and  indissolubility  of  the  union  were  by  no  means  of 

1  Heusler,  "Institutionen",  I,  238. 

2  The  Sachs.  Lehiir.,32,  §  3,  laj's  this  down,  accordingly,  for  collective 
feoffees. 

^Gierke,  "Genossenschaftsrecht",  II,  928. 

235 


§  33]  THE    LAW    OF   THINGS  [BoOK   II 

tlieir  essence.  But  of  course  tlie  right  to  partition  might,  in  in- 
(livithial  cases,  be  exchuled ;  either  by  contract,  as  was  often  true 
of  the  co-heirsliip  of  knightly  orders,  or  by  the  nature  of  the  per- 
sonal group,  as  in  the  marital  community. 

(B)  Weaker  foiims.  —  Since  the  "collective  hand"  was 
simply  and  solely  a  principle  of  law,  the  application  of  this  prin- 
ciple, however,  being  dependent  upon  the  nature  of  the  union 
in  which  the  commoners  were  associated,  it  followed  that  legal 
institutes  were  possible  which  represented  a  weakening  of  the  pure 
j)rinciple.  The  pure  form  was  present  wherever  there  was  un- 
divided administration  of  property,  as  in  the  peasant  communities 
and  in  the  marital  community.  But  wherever,  as  in  the  case  of 
co-heirship  in  the  knightly  orders,  the  common  household  was 
abandoned  and  a  distribution  of  holdings  made  for  separate 
usufruct  ("  Mutsehierung  "),  collective  control  was  continued 
solely  with  respect  to  the  substance  of  the  property,  and  com- 
munity ownership  found  expression  solely  in  the  requirement  of 
common  disposition  thereof.  In  the  possibility  that  existed  of 
entrusting  one  of  the  co-owners  with  the  representation  of  the 
rest,  thus  permitting  him  to  dispose  of  it  in  the  name  of  all, 
there  was  involved  another  weakening  of  the  principle.  Finally, 
the  personal  union  might  be  entirely  dissolved,  within  the  group, 
and  an  ideal  share  assured  to  each  individual  in  accordance  with 
the-"  quota  principle  "  {infra,  under  3).  In  this  case  the  former 
unity  of  the  grouj)  continued  externally  only,  —  as  for  example 
in  its  relations  with  a  feudal  lord  :  as  against  him  the  collective 
tenants  were  regarded  as  a  unit,  and  upon  the  death  of  one  of 
them  his  share  did  not  become  free  of  the  group  and  pass  to  the 
lord,  but  accrued  to  the  surviving  commoners. 

(2)  Ordinary  Collective  Otvnership  ("  Gesamteigentura  ").  —  An- 
other form  of  community'  ownership  was  the  collectiA'c  ownership 
developed  in  the  sib,  and  later  (and  especially)  in  agrarian  associ- 
ations. In  agreement  with  the  gradually  sharpening  differentia- 
tion, already  discussed  (supra,  pp.  140  et  seq.),  of  the  group  as 
opposed  to  the  fellow  members,  it  appeared  in  an  older  and  in  a 
younger  form. 

(A)     ASSOCIATIONAL       COLLECTIVE       OWXERSHTP        ("  gCUOSSen- 

schaftliches  Gesamteigentum  ")  in  the  common  march  of  the 
old  mark-association  was  located,  so  long  as  such  an  associa- 
tion was  not  regarded  as  a  juristic  person,  in  tlic  whole  body 
of  associates  and  in  the  individual  associates.  The  essence  of 
this  collective  associational  ownership  lay  in  this,  that  a  part 

236 


Chap.  VI]  THE    LAW    OF   LAND  :     OWNERSHIP  [§  33 

of  the  powers  included  in  the  rights  of  ownership  inhered 
in  the  entirety  of  the  fellows  as  such,  while  the  individual 
associates  were  permitted  to  exercise  another  part  as  members 
of  the  group.  Thus  the  group,  as  such,  had  the  power  of  dispos- 
ing of  the  commonty,  —  the  communal  assembly  determining 
the  uses  to  be  made  of  it  by  vote  of  the  majority,  —  and  exer- 
cised, as  such,  certain  rights  of  usufruct  in  it ;  the  communal 
officials,  for  example,  were  paid  their  salaries  out  of  its  produce. 
The  produce  of  the  commonty  was  primarily  devoted,  however,  to 
the  benefit  of  the  individual  associates  and  the  satisfaction  of 
their  special  economic  needs.  To  this  end  they  enjoyed  rights  of 
usufruct  in  it  (right  of  pasture,  of  estovers,  rights  to  clear  land, 
etc.)  which  were  originally  unlimited,  but  which  later,  out  of 
regard  for  the  interests  of  the  group,  were  restricted.  Rights 
of  ownership  in  the  collective  body,  as  such,  and  rights  of  owner- 
ship in  the  members  of  the  group,  occurred,  therefore,  in  unison ; 
and  both  in  the  apportioned  and  (particularly)  in  the  unappor- 
tioned  lands.  This  collective  ownership  was  neither  the  purely 
corporate  ownership  of  a  juristic  person,  nor  a  mere  co-owner- 
ship of  individuals  by  shares;  but,  as  Gierke  has  shown,  con- 
tained within  itself  the  germs  of  both.  It  was  therefore  the 
exact  counterpart,  in  the  law  of  things,  of  mark  and  village  asso- 
ciations in  the  law  of  persons. 

(B)  Corporate  collective  ownership  ("  korporatives 
Gesamteigentum  ").  —  Wherever  the  association  ("  Genossen- 
schaft ")  became  a  corporate  association  ("  Korperschaft,  — 
supra,  p.  140),  the  associational  property  became  a  quasi-cor- 
porate property.  But  this  made  no  essential  change  in  the  char- 
acter of  the  collective  ownership.  For  despite  the  corporate  bond 
between  the  fellows,  the  objects  included  in  the  corporate  property 
were  not  therefore  things  "  foreign  "  to  them  as  individuals  ;  their 
separate  rights,  here  also,  were  not  limitations  upon,  but  were 
results  of,  the  corporate  ownership.  Afterwards  as  before,  the 
rights  that  inhered  in  them  as  members  of  the  juristic  person  were 
united  with  those  that  inhered  in  the  group,  as  such,  into  a  col- 
lective right,  whose  content  was  ordinarily  apportioned  between 
the  individuals  and  the  group  in  such  a  way  that  the  latter  re- 
ceived dispositive  and  administrative  powers  and  the  former 
rights  of  usufruct,  wholly  or  principally  in  the  form  of  shares 
representing  distinct  rights. 

Inasmuch  as  ownership  in  collective  hand  and  the  old  asso- 
ciational ownership,  although  of  diverse  origin,  rested  upon  the 

237 


§  33]  THE    LAW    OF   THINGS  [BoOK   II 

same  principle,  —  such  a  union  of  the  co-owners  as  was  recognized 
by  the  hiw  of  persons  being  a  pre-condition  of  botli,  —  it  was  pos- 
sible in  later  times  to  class  them  together  as  different  forms  of  the 
same  type,  and  as  such  to  contrast  both  of  them  with  corporate 
collective  property. 

(3)  Co-oicncrship  by  Sharc.s\  —  Finally,  the  medieval  law  also 
recognized  (although  it  was  probably  not  widely  distributed) 
that  form  of  community  ownership  which  is  represented  for  each 
individual  co-owner  by  an  independent  "  quota-right  ",  upon  the 
strength  of  which  he  is  entitled  to  dispose  of  his  ideal  share  by 
pledging  it,  by  charging  it  with  annuities  and  the  like,  by  alienat- 
ing it  freely,  and  by  devising  or  bequeathing  it ;  as  well  as  to 
demand  partition  or  distribution  at  any  time.  But  here  again 
only  the  whole  body  of  co-owners  were  capable  of  dispositive 
acts  affecting  the  whole  thing.  Such  a  simple  co-ownership 
often  occurred  among  heirs.  It  was  applicable  to  houses  (a 
person  possessed  the  half  or  the  third  or  fourth  part  of  a  house), 
to  other  realty,  and  to  sea-going  ships  held  by  several  ship- 
owners in  co-ownership  by  shares.  In  the  last  case  any  co- 
owner  could  demand  the  dissolution  of  the  associational  relation 
through  what  was  called  "putting  a  value  on  the  ship":  that 
is,  he  must  indicate  a  sum  for  which  he  was  ready  either  to 
abandon  the  ship  to  the  other  co-owners  or  retain  it  alone. 

(II)  The  modem  development.  —  (1)  The  Reception  and  the 
Older  Germanic  Theory  of  Collective  Ownership.  —  Unlike  the 
medieval  law  the  Roman  knew  only  a  "  condominium  pro  parti- 
bus  indivisis  ",  or  co-ownership  by  separate  ideal  shares  ("  Quo- 
tenprinzip  ")  such  as  had  already  found  adoption  in  the  German 
law,  and  the  exclusive  sole  ownership  of  a  juristic  person 
beside  which  the  rights  of  the  corporate  members  in  the  social 
property  could  exist  only  as  "iura  in  re  aliena."  Here  again, 
after  the  Reception,  the  chief  endeavor,  at  first,  was  to  bring 
these  two  Roman  categories  to  undisputed  dominance,  and  to 
arrange  under  them  the  wealth  of  forms  of  community  property 
developed  in  the  native  law.  The  futility  of  this  undertaking 
finally  became  apparent.  After  a  vain  endeavor  to  piece  out 
the  Roman  concei)ts  with  "modifications"  by  institutes  peculiar 
to  the  German  law  things  went  so  far,  toward  the  end  of 
the  1600  s,  that  a  native  theory  was  opposed  to  the  theory  of 
the  Roman  law,  —  "  the  first  conscious  attempt  at  independent 
construction "  to  be  found  in  Germanic  jurisprudence.^  The 
1  Gierke,  "P*rivatrecht",  II,  377. 
238 


Chap.   VI]  THE   LAW   OF   LAND  :     OWNERSHIP  [§  33 

newly  devised  concept  of  "  collective  ownership  "  was  first 
used  to  explain  the  marital  community  of  goods/  collective-ten- 
ancy, co-heirship,  and  the  mark-association.  In  the  end,  the 
Roman  concept  of  co-ownership  was  placed  beside  it  as  a  general 
concept  of  equal  rank.  But  however  much  men  thus  endeavored 
to  satisfy  practical  necessities,  and  however  quickly  the  new 
concept  spread,  especially  in  the  law  of  nature  (most  of  the  modern 
codes  were  influenced  by  it),  its  theoretical  basis  remained  no  less 
questionable.  When  it  was  construed  as  a  "  condominium 
plurium  in  solidum  "  men  overlooked  the  inconsistency^  of  such  an 
assumption  with  the  Roman  concept  of  ownership  which  they 
had,  in  other  respects,  retained ;  and  when  others  discovered  in 
the  union  of  collective  owners  a  collective  person,  a  "  persona 
moralis  "  in  the  sense  of  the  common  law,  they  shut  their  eyes  to 
the  fact  that  there  were  involved  in  different  cases  wholly  dif- 
ferent groups,  and  therefore  also  different  collective  rights. 

These  obscurities  proved  fatal  to  the  theory.  The  Romanistic 
jurisprudence  of  the  1700  s  was  indefatigable  in  proving  beyond 
contradiction  the  inconsistency  with  the  Roman  sources  of  the 
conception  of  collective  ownership  theretofore  taught ;  it  was 
made  the  ol)ject  of  ridicule,  and  was  rather  generally  abandoned, 
even  by  Germanists. 

(2)  The  Increasingly  Wide  Occurrence  of  Community  Property 
<is  an  actual  Legal  Institute.  —  In  the  meantime,  however,  the 
forms  of  community  property  developed  by  the  German  law, 
far  from  disappearing,  had  found  an  increasingly  wide  acceptance 
that  was  of  the  utmost  significance. 

(A)  Ownership  in  collective  hand  maintained  itself,  as  has 
already  been  remarked  {supra,  p.  144),  in  the  marital  and  the  con- 
tinued-marital community,  and  was  also  extended  outright  to 
the  community  right  of  co-heirs;  for  example  in  the  Prussian 
"  Landrecht  ",  which,  like  the  Bavarian  "Landrecht"  and  the 
Austrian  Code,  closely  assimilated  co-ownership  to  ownership 
in  collective  hand.  But  above  all  it  was  retained  in  the  com- 
mercial and  admiralty  law,  in  which  it  had  already  found  appli- 
cation in  the  Middle  Ages.  The  partnership  estate  of  an  unlimited 
mercantile  partnershij)  was  owned  in  collective  hand  by  the 
partnership  (which  was  not  made  a  juristic  person  although 
recognized  as  a  unity)  and  the  partners,  who  were  entitled  to 
share  rights  therein.     It  was  the  same  with  tlie  limited  partner- 

'  Justus  Veracius,  "Libellus  consuetudinum  principatu3  Bambergensis  " 
<1681). 

239 


§  33]  THE    LAW    OF   THINGS  [BoOK   II 

sliip.  Ship-partnership  property  ("  Reedereivermogen ")  also 
sliows  that  union  of  ownership  by  a  group,  as  sucli,  and  the  mem- 
bers as  individuals,  which  is  characteristic  of  ownership  in  col- 
lective hand. 

(B)  Corporate  collective  ownership,  as  contrasted  with 
the  Roman  institute  of  ownership  by  a  juristic  person,  was  very 
generally  maintained,  on  the  one  hand,  in  the  legal  relations  of 
agrarian  associations ;  and,  on  the  other  hand  and  especially, 
in  the  capitalistic  associations  ("  Kapitalgenossenschaften  ") 
of  the  mining  law  based  upon  shares  in  the  company  prop- 
erty, and  still  more  in  commercial  share  companies  ("  Aktien- 
gesellschaftcn  ")  and  the  like. 

(3)  The  Present  Law.  —  The  Germanic  theory  of  associations 
(supra,  p.  157),  through  its  investigation  of  personal  groups  in 
the  Germanic  law,  made  possible,  at  the  same  time,  an  under- 
standing of  the  concepts  of  the  law  of  things  that  underlay  them  ; 
and  also  taught  men  to  recognize,  both  in  the  community  owner- 
ship of  partners  held  in  collective  hand  and  in  the  collective  owner- 
ship of  the  Germanic  corporate  associations  ("Korperschaften"), 
forms  of  collective  right  which  differ  both  from  the  co-ownership 
of  the  common  law  and  from  the  sole  ownership  of  the  juristic 
person  recognized  in  the  common  law.  In  this  way  that  theory 
made  it  possible,  not  only  consciously  to  retain  thenceforth  the 
extensions  of  the  ownership  concept  developed  in  German  law, 
wherever  they  had  persisted  (even  though  not  understood)  in 
practice,  but  also  to  secure  for  them  still  wider  application 
through  legislation.  Besides  the  simple  co-ownership  by  undivided 
shares  recognized  by  the  present  Civil  law  (BGB,  §  lOOS)  and 
the  ownership  of  juristic  persons  that  was  derived  from  the  Roman 
law,  corporate  collective  ownership  exists  today  under  im- 
perial law  in  the  partnerships  of  the  commercial  law,  wliich  are 
endowed  with  juristic  personality,  and,  particularly,  under  State 
law  in  trade  unions.  Ownership  in  collective  hand  has  not  only 
been  retained  in  the  new  Civil  Code  in  the  marital  and  con- 
tinued-marital community  of  goods  (§§  1438,  1492  ct  seq.,  1519, 
1549)  and  in  the  herital  community  (§  2032),  but,  what  is  most 
important,  has  been  made  the  basis  of  the  })artnersliip  of  the 
private  law  (§  718  ei  seq.).  There  exists  in  such  a  partnership, 
in  contrast  to  the  bare  co-ownership  of  the  Roman  partnership, 
a  separate  partnership  estate  held  by  the  partners  in  collective 
hand.  Moreover,  ownership  in  collective  hand  continues  to 
be  recognized    in    the  case    of    a    ship    partnership,    and    may 

240 


Chap.  VL]  THE   LAW   OF   LAND  :     OWNERSHIP  [§  34 

continue  to  appear  in  special  institutes  developed  in  the  law  of 
the  individual  States  (EG,  §§  1G4,  181.2).  The  Swiss  Civil 
Code,  also,  recognizes  two  forms  of  community  property; 
namely,  co-o^\^le^ship  by  undivided  shares  (§§  646-651)  and 
collective  ownership  (§§  652-654).  The  latter  it  defines,  — • 
something  which  the  German  Code  has  thus  far  refused  to 
do,  —  in  the  sense  of  the  Germanic  law,  declaring :  "  whenever 
several  persons  who  are  united  in  a  community  by  contractor  in 
obedience  to  the  command  of  law,  hold  the  ownership  of  a  thing 
by  virtue  of  such  community,  they  are  collective  owners,  and 
the  right  of  each  extends  to  the  whole  thing."  It  further  provides 
that  the  rights  and  duties  of  collective  owners  are  determined  by 
the  rule  by  which  their  community  is  regulated ;  that  in  cases  of 
doubt  a  unanimous  vote  is  requisite  to  the  exercise  of  ownership ; 
and  that  no  right  to  partition,  or  to  dispose  of  an  undivided  share, 
can  be  exercised  during  the  continuance  of  the  community. 

§  34.  The  Acquisition  of  Ownership  by  Contract.^  —  The  ap- 
pearance of  individual  ownership  in  the  soil  was  a  necessary  pre- 
condition to  any  frequent  application  in  practical  life  of  land 
conveyances  by  juristic  act.  Such  conveyances,  like  all  other 
juristic  acts,  were  associated  in  Germanic  medieval  law  with 
definite  formalities,  and  were  dominated,  as  were  all  other  dealings 
in  land,  by  the  principle  of  publicity.  The  German  law  has 
always  clung  steadfastly  to  these  requirements. 

(I)  The  Oldest  Law.  —  (1)  The  Original  Single  Act  performed 
upon  the  Land.  —  In  the  oldest  Germanic  law  the  contractual 
alienation  ("Verausserung")  and  actual  transfer  ("  Ubereignung  ") 
of  land  were  both  effected  by  a  single  act  that  was  performed 
upon  the  land  itself.  Like  every  contract  relating  to  property 
rights,  it  was  a   real  contract  {infra,  §  71),  a  non-credit  trans- 

1  Stohbe,  "Die  Auflassung  des  deutsehen  Rechts",  in  J.  B.  fiir  Dogm., 
XIT  (1872),  1.37-272  ;  Sohm,  "Zur  Cxesehichte  der  Auflassun^"  in  Festgabe 
der  Strassburger  Fakultat  fiir  Th5l  (1879),  79  et  seq.;  Brunner,  "Zur 
Rechtsgesehiehte  der  romisehen  und  germanisehen  Urknnde",  I  (1880); 
Beyerle,  "Grundeigentumsv^erhaltnisse  und  .Blirgerreeht  im  mittelalter- 
lichen  Konstanz",  I  (1890) ;  Goerlitz,  "Die  Ubertragung  liegendcn  Gutes 
in  der  mittelalterlichen  und  neuzeitlichen  Stadt  Breslau",  in  Bci/crle's 
"Beitrilge",  I.  2  (190(5);  Otto  Locning,  "Grunderwerb  und  Treuband  in 
Liibeck",  No.  93  (1907)  of  G-icrke's  "Untersuebungen" ;  Dyckerhoff, 
"Die  Entstehung  des  Grundcigcntunis  und  die  Entwicldung  der  gerieht- 
liehen  Eigentuinsiibertragung  an  Grundstiicken  in  der  Reielisstadt 
Dortmund",  in  Beijerle's  "Beitrage",  III.  1  (1909) ;  Bdchel,  "Die  Grund- 
stiieksiibereignung  in  Sachsen-Weimar-Eisenaeh.  Zugleicli  ein  Beitrag 
zur  Rechtsgeschiebte  Thiiringens".  No.  109  (1911)  of  Gierke's  "Unter- 
suebungen"; Wissmann,  "Formbchkeiten  bei  Landiibertragungen  in 
England  wiibrend  der  anglonormanniscben  Zeit",  in  Arch.  Urk.  F.,  Ill 
(1911),  251-294. 

241 


§  34]  THE    LAW    OF   THINGS  [BoOK   II 

action,  in  which,  when  it  was  bilateral  (as  for  example  in  sale), 
the  mutual  performances,  —  payment  of  the  purchase  price  and 
delivery  of  the  land,  —  were  simultaneously  rendered.  This  act 
was  performed  in  public,  that  is  to  say  in  the  presence  of  witnesses  ; 
who,  if  they  were  boys,  had  their  ears  boxed  and  pulled  as  an  aid 
to  memory.!  Nevertheless,  even  in  this  oldest  stage  of  develop- 
ment there  are  two  theoretical  elements  that  must  be  kept  apart, 
altliough  they  were  still  united  in  what  was  outwardly  a  single  act, 
and  only  later  became  sensibly  separate.     These  elements  were : 

(A)  The  agreement  to  alienate  :  that  is  to  say,  the 
formally  perfected  contract,  following  any  preliminary  negotia- 
tions, for  the  transfer  of  ownership ;  in  other  words  a  real  con- 
tract in  the  sense  of  the  present  private  law,  ^  —  a  declaration 
of  will  intended  to  effect  an  immediate  transfer  of  physical  control, 
and  at  the  same  time  an  obligatory  contract  by  which  a  legal 
duty  was  imposed  to  proceed  (and  that  at  once)  to  the  act  of 
delivery.  In  the  sources  we  find  used  to  designate  this  trans- 
action the  expressions  "  sala  "  (Old  High  G.  "  sala  ",  Mid.  High 
G.  "  sale  ",  "  salung  ",  from  Gothic  "  seljan  "  ;  Old  Norse  "  selja  ", 
A.  Saxon  "  sellan  "  — English  "to  sell"  :  =  "tradere"),  and 
"  traditio  "  ;  and  so  too  it  is  customarily  called  to-day  (Sohm, 
Brunncr).  These  names  were  also  used,  however,  to  designate 
the  entire  act;  and  "traditio",  "tradere",  were  employed  to 
designate  its  second  part  alone. 

(B)  The  deliveiiy  of  the  land  :  the  clothing  with  posses- 
sion, —  the  "  giweri  ",  "  giwerida  ",  "  vestitura  ",  "  investitura  " 
of  the  sources  {supra,  p.  I&3).  Since  the  transfer  of  a  piece  of 
land  coidd  not  be  realized  as  a  physical  fact,  as  could  that  of  a 
movable  thing,  by  manual  tradition,^  it  was  made  visible  by 
symbolic  juristic  acts.  These  acts  served  to  express  two  things : 
the  clothing  of  the  acquirer  with  the  seisin  of  the  land,  and  the 
abandonment  of  seisin  on  the  part  of  the  alienor. 

The  former  consisted  in  the  alienor's  taking  a  piece  of  the  land 
suitable  for  manual  delivery  (clod,  turf,  twig,  sod,  door  post, 
bell-rope,  or  altar-cover)  from  the  land,  and  laying  it  in  the  hand 
or  in  the  lap  of  the  acquirer.  In  addition  to  this  there  was  very 
often  also  handed  over  an  object,  —  such  as  a  glove,  "  Andelang  " 
( =  perhaps   pot-hook)  '',    spear,    knife,  or   hat,  —  symbolical   of 

»  "Lex  Ribuaria",  60,  1. 

*  ^runner's  "  rirundziipfe"  (.5th  ed.),  197. 
^  lirunnrr,  "Mrkimdc",  27.*^. 

*  E.g.  accordin^j:  to  Coldmnnn,  "Der  Andelanp:",  No.  Ill  (1912)  of 
Gierke's  "Untersuehungen",  who  derives  the  word  from  Romance  roots. 

242 


Chap.  VI]  THE    LAW   OF   LAND  :     OWNERSHIP  [§  34 

physical  control ;  and  this  latter  may  originally  have  been  the 
form  that  gave  efficacy  to  the  contract  of  conveyance.  This 
investiture  was  called,  inasmuch  as  it  had  to  be  performed  upon 
the  land  itself,  corporeal  or  real. 

The  release  of  seisin  was  realized  by  the  alienor's  actually 
going  off  the  land  ("  exitus  ",  "  exire  ")  in  a  legally  formal  manner. 
Among  the  Salian  Franks  he  must  spring  over  the  hedge  with  a 
stick  in  his  hand,  after  delivery  of  the  turf.  With  these  formalities 
there  were  associated  other  acts  indicative  of  a  change  of  control : 
a  common  walking  of  the  boundaries,  putting  out  the  hearth  fire 
and  lighting  it  anew,  the  sheltering  of  guests  by  the  acquirer, 
sitting  down  upon  a  three-legged  stool,  and  others.  The  formal 
vacation  ("  evacuatio  "),  renunciation  ("  abdicatio  ",  "  resig- 
natio  "),  or  abandonment  ("  Verlassung  ",  later  "  Auflassung  "), 
was  doubtless  always  accompanied  by  formal  speech.  The 
Saxons,  from  the  earliest  times,  made  this  with  the  finger  crooked 
in  accord  with  a  definite  rule ;  and  this  has  in  places  persisted  to 
the  present  day,  —  renunciation  with  "  finger  and  tongue  ", 
"  curvatis  digitis."  Among  the  Franks  there  appeared  at  an 
early  day,  in  place  of  a  legally  formal  "  exire  ",  the  "  exitum  se 
dicere  ",  "  facere  ",  "  se  absacitum  facere  ",  and  others;  that 
is  to  say,  in  place  of  an  actual  vacation  of  possession  a  contract 
for  such  vacation.^  This  was  concluded  as  a  formal  contract,  a 
little  staft'  ("  festuca  ")  being  thrown  into  the  lap  of  the  feoft'ee 
("  festucam  in  laisum  iactare  "),  or,  as  later  became  usual,  handed 
over.  Hence  the  whole  contract  was  designated  as  "  exfestu- 
catio  ",  "  werpitio  ",  "  laesowerpitio  "  (medieval  "Verschiessen  ", 
=  "to  shoot")."  This  abandonment  with  "haulm  and  mouth" 
spread  from  the  Frankish  domain  to  that  of  all  the  other  Germanic 
racial  branches  with  the  exceptions  of  the  Saxons  and  the  Frisians. 

(2)  Investiture  away  from  the  Land.  —  The  requirement  that  the 
conveyance  should  be  perfected  upon  the  spot  must  have  proved 
burdensome  in  many  ways  as  transactions  involving  land  in- 
creased. But  it  was  long  maintained  intact  where  the  number 
of  such  transactions  was  relatively  small,  even  in  smaller  urban 
communes  (as  Constance).  It  was  not  indispensable,  because 
not  only  the  contractual  agreement  but  also  the  acts  that 
miade  visible  the  change  of  possession,  namely  the  delivery 
of  pieces  of  the  soil  and  of  symbols  of  dominion  and  the 
renunciatory  declaration,  could  in  fact  be  performed  exactly  as 

^  Brunner's  "Grundziiffe"  (5th  ed.),  197. 

2  See  V.  Amira,  "Stab"  {supra,  p.  9),  147  et  seq. 

243 


§  34]  THE    LAW    OF   THINGS  [BoOK   II 

well  off  the  land.  Thus,  beside  the  conveyance  with  corporeal  or 
real  inves:iture,  performed  upon  the  land  itself,  there  appeared  an 
incorporeal  investiture  that  took  place  ofi"  the  land. 

(A)  Release  l\  coukt.  —  Such  incorporeal  investiture  was 
earliest  applied  in  the  form  of  a  judicial  release,  at  first  exclu- 
sively in  the  king's  court  but  later  in  the  popular  courts  also. 
The  party  who  was  condemned  to  vacate  possession  made  to 
the  victorious  litigant,  in  accordance  with  the  court's  judgment 
and  before  the  court,  an  immediate  investiture  ("  revestitio  ") 
and  renunciation  of  seisin  ("  Auflassung  ",  "  exfestucatio  "). 
Inasmuch  as  this  judgment  did  not  necessarily  presuppose  an 
actual  suit  at  law,  but  could  also  be  secured  through  a  collusive 
action,  an  instrument  had  here  been  found  which,  like  the 
Roman  "  in  iure  cessio  ",  could  be  made  to  serve  as  a  voluntary 
conveyance  of  ownership ;  ^  an  instrument  that  was  valuable, 
because  he  who  acquired  the  land  also  received,  in  the  judicial 
record  of  the  release  thus  made,  documentary  evidence  of  peculiar 
strength. 

(B)  "  IxvESTiTURA  PER  cartaisl"  —  Still  more  important 
was  the  combination  of  Germanic  investiture  with  the  "  traditio 
per  cartam  "  developed  in  the  \'ulgar  Roman  law,  which  re- 
quired nothing  more  than  the  delivery  of  the  conveyance  deed 
("  carta  ")  :  this  perfected  at  once  the  contract  of  alienation  and 
the  transfer  of  ownership.  This  form  of  conveyance  found  wide 
acceptance  in  the  Frankish  empire,  owing  especially  to  the  influ- 
ence of  the  church.  But  not  only  was  it  associated  with  a  subse- 
quent corporeal  investiture  :  it  was  also,  —  and  this  by  far  most 
commonly,  —  transformed  in  peculiar  manner  into  an  incorporeal 
investiture.  Small  portions  of  the  land  and  symbols  of  control 
were  handed  over  at  the  same  time  as  the  deed.  For  this  pur- 
pose the  "  carta  ",  still  unexecuted,  was  laid  upon  the  ground 
beside  the  piece  of  turf,  and  then  (often  after  pen  and  ink- 
well were  laid  upon  it)  was  raised  with  the  turf  from  the 
ground ;  whence  the  phrase,  common  among  the  Franks,  Ala- 
manians,  Bavarians,  and  Burgundians,  "cartam  levare",  of  which 
we  hear  the  echo  in  our  expression  "  eine  Trkunde  aufnehmen  " 
—  to  "raise"  a  document  ["levy"  a  fine].  At  the  same  time 
a  renunciatory  phrase  was  spoken ;  among  the  Saxons  with 
fingers  bent  as  the  rule  prescribed,  and  among  the  Franks  and 

•  Briinncr,  "Urkundc",  275.  See  also  Peterka,  "Das  offene  zum  Schcine 
Ilandeln  im  deutschen  Rechte  des  Mittelalters",  in  Beyerle's  "Beitrage", 
VII.  1  (1911),  21-32. 

244 


Chap.  Yl]  THE    LAW    OF   LAND  :     OWNERSHIP  [§  34 

other  racial  branches  that  followed  them  in  this  respect,  with 
manual  tradition  of  the  "  fcstuca  ",  which  not  infrequently  was 
fastened  to  the  deed.^  In  this  manner  the  conveyance  forms  of 
the  old  popular  law  and  the  Roman  deed  were  united  organically 
in  one  institute.'-  Like  the  Roman  "  traditio  cartae  ",  the  "  in- 
vestitura  per  cartam  "  could  be  performed  at  any  place,  for  ex- 
ample in  the  church  ;  the  Ripuarian  folk-law  originally  stood  alone 
in  requiring  judicial  character.^ 

This  "investitura  per  cartam",  like  the  original  Germanic  con- 
veyance, was  a  single  act,  combining  at  the  same  time  and  place 
the  contract  ("  sala  ")  and  the  delivery  ("  investitura  ").  It 
was  only  after  a  capitulary  of  818-819  permitted  a  "  traditio  car- 
tae ",  for  the  good  of  the  conveyer's  soul,  outside  the  county 
where  the  thing  was  located,  allowing  the  promised  investiture 
to  take  place  later  on  the  spot,  that  the  "  sala  "  and  the  investiture 
become  distinct.  Only  in  this  exceptional  case  did  the  "  traditio 
cartae  "  continue  to  have  real  effect,  by  itself,  as  a  "  sala"concluded 
according  to  legal  forms,  despite  the  temporary  lack  of  investiture. 
In  other  cases  it  remained  true  that  only  "  sala  "  and  investiture 
together  conveyed  right  and  possession ;  incorporeal  investiture 
was  sufficient  only  when  united  with  the  judgment  of  the  court  or 
with  a  "traditio  cartae",  for  it  secured  to  the  acquirer,  precisely 
as  did  a  real  investiture,  not  only  the  real  right  but  also,  as  against 
the  alienor,  seisin  in  the  land  (in  the  sense  of  the  medieval  law,  the 
incorporeal  seisin).  The  real  vacation  of  possession  that  followed 
upon  the  incorporeal  investiture  was  of  no  effect  upon  the  legal 
relations  of  the  parties.  It  simply  established  the  accomplished 
fact,  as  against  third  parties,  of  the  alienee's  seisin ;  in  par- 
ticular, it  alone  prevented  the  acquisition  of  seisin  by  a  third 
party  through  one  year's  possession  {supra,  p.  201).  Although  a 
real  effect  was  generally  denied  to  a  delivery  of  a  deed  without  a 
simultaneous  delivery  of  the  symbol  of  investiture,  such  delivery 
-being  only  rarely  recognized  (at  least  in  Germany)  as  itself  in- 
vestiture, yet  from  the  beginning  of  the  800  s  the  mere  delivery 
of  the  symbol  of  investiture  without  a  "carta"  was  regarded  as  a 
valid  form  of  investiture,  even  away  from  the  land.  It  is  possible 
that  this  was  a  consequence  of  the  decay  of  culture  that  set  in 
after  the  later  Carolingians.^ 

1  Tangl,  "Urkiinde  und  Symbol",  in  Festschrift  fiir  H.  Brnnner  (1911), 
761-773. 

2  Brunner,  op.  cit.  ^  "Lex  Rib.",  59,  1. 
*  Schroder,  "Lehrbueh"  (5th.  ed.)  292. 

245 


§  34]  THE    LAW    OF   THINGS  [BoOK   II 

(II)  The  Medieval  Law.  —  (1)  Rcla.vatimi  of  ihc  Old  Forws. — 
In  the  post-Fraiikish  period  of  the  ^liddle  AgCs  the  conveyance 
retained  essentially  its  old  form,  save  that  the  old  formalities  were 
relaxed,  that  the  symbolism  ceased  to  be  a  living  form,  and  that 
a  deed  as  a  symbol  of  tradition  fell  very  soon  into  complete  dis- 
nse.  Yet  even  after  that  period,  and  until  well  into  the  period  of 
the  Law-Books  and  often  until  a  time  far  later,  and  in  South  as 
well  as  in  North  Germany,  the  two  (or,  if  one  counts  separately  the 
two  elements  that  entered  into  investiture,  the  three)  acts  of  the 
primitive  law  can  be  still  distinguished  :  first,  the  real  juristic  act, 
the  old  "  Sala  ",  the  gift,  renunciation,  "  donatio  ",  etc.  —  still 
frequently  associated  with  the  delivery  of  a  symbol  of  dominion 
(now  the  glove),  but  also  frequently  consummated  by  mere  formal 
declaration  (known  in  Breslau  as  '' resignare  ",  "  ufgeben  ", 
"ufreichen") ;  second,  the  investiture,  seisin,  execution — likewise 
still  given  sensible  form  by  the  employment  of  the  old  symbols 
(turf  and  twig),  but  also  perfected  in  this  period  by  mere 
handclasp ;  third,  the  act  of  renunciation  —  the  release  of  the 
Saxon  law,  known  in  the  South  German  town  laws  and  also  in 
Breslau,  a  town  of  ^Magdeburg  law,  as  "entziehen",  "verziehen", 
"sich  verziehen"  ("to  remove") — still  expressed  in  the  regions 
of  French  law  in  the  form  of  the  "  exfestucatio  ",  "werpitio", 
but  elsewhere  usually  effected  like  the  gift  merely  by  formal 
words.     In  time,  however,  many  further  changes  came  about. 

(2)  Increasingly  Judicial  Character.  —  From  about  the  1000  s 
onward  it  became  in  Germany  a  custom,  and  in  many  places  a 
requisite,  to  make  conveyances  of  land  with  the  cooperation  of  the 
court,  and  therefore  ordinarily  at  the  place  where  the  court  met, 
in  other  words  in  the  major  folk-court  ("  echtes  Ding  ").  Dif- 
ferent causes  contributed  to  this  result.  As  has  been  already 
mentioned,  there  were  cases  even  in  the  Frankish  period  in 
which  seisin  was  surrendered  on  the  basis  of  a  judgment  given  in 
court,  following  either  an  actual  or  a  fictitious  suit,  and  which 
furnished  the  alienee  with  evidential  security  in  the  testimony  of 
the  court  and  the  judicial  record.  It  now  became  possible  to  at- 
tain the  same  advantages  without  any  litigation  whatever  (whereas 
in  Fngland,  for  example,  collusive  suits  as  a  means  of  conveyance 
lived  on  until  IKVA)  :  ^  for  in  the  medieval  law  a  judgment  might 
issue,  upon  requisition  of  the  acquirer,  without  any  precedent  suit, 
confirming  his  right  and  the  legality  of  the  conveyance.  What 
was  still  more  important,  there  was  united  with  the  judgment 
*  Brunner,  "Urkunde",  288. 
246 


Chap.  VI]  the  LAW  OF  LAND  :    ownership  [§  34 

a  summons  (connected  with  the  Frankish  "  missio  in  bannum  ") 
by  which  the  right  of  the  acquirer  was  assured  against  any  pos- 
sible adverse  claims  of  third  parties.  Upon  summons  thrice  re- 
peated by  the  judge  to  enforce  such  claims,  persons  within  the 
jurisdiction  must  bring  them  at  once ;  if  this  was  not  done  then 
the  judge  laid  a  peace  upon  the  land,  thereby  not  only  cutting 
off  any  later  impeachment  by  such  parties,  but  at  the  same  time 
imposing  upon  persons  outside  the  jurisdiction  the  obligation  of 
making  objections  within  a  year  and  day ;  if  this  was  not  done 
their  claims  were  barred  by  prescription  ("  Verschweigung", 
"tacit  preclusion").  After  the  passing  of  such  period  the  seisin 
of  the  acquirer  gained  by  surrender  in  court  was  transformed 
into  a  citation  ("rechte")  seisin  (supra,  p.  201).^  Finally,  because 
the  requisite  of  publicity  was  best  satisfied  by  a  conveyance  in 
court,  the  rapid  and  widespread  use  of  judicial  surrender  is  suffi- 
ciently explained  by  these  advantages  associated  with  it.  Also 
important,  however,  were  certain  circumstances  associated  with 
the  constitution  of  the  courts  (namely,  the  control  exercised  by  the 
court's  lord  over  transactions  involving  lands,  which  were  the 
basis  of  the  obligation  of  court  duty,  and  the  control  exercised 
by  the  counts  and  town  authorities  over  the  possession  of  lands 
subject  to  the  obligations  of  paying  taxes  and  court  duty),-  as  well 
as  the  example  of  the  feudal  and  manorial  conveyances  that  were 
associated  with  the  feudal  and  manorial  courts.  In  the  time  of 
the  Law-Books  the  effectuation  of  conveyances  in  court  was  not 
only  the  rule,  but  in  many  places  was  absolutely  necessary,  es- 
pecially within  the  'regions  of  the  Saxon  Territorial  law,  in  the 
towns  of  the  ]Magdeburg  group  of  town  laws,  and  later  throughout 
the  whole  domain  of  the  Saxon  common  law,  as  well  as  in  Switzer- 
land.^ The  place  of  the  court  was  often  taken  by  the  town  council. 
(3)  Registration.  —  In  many  regions,  especially  in  South  Ger- 
many, surrender  in  court  again  lost  ground  from  the  1300  s  onward. 
To  this  retrogression  there  contributed  the  decay  of  the  rural 
courts,  the  increasing  importance  of  official  certification  by  seal, 
—  wliich  could  be  performed  by  every  notary,  and  indeed  in 
many  places  (e.g.  Ziirich)  by  any  burgher,  —  and  the  beginnings 
of  the  influence  of  the  alien  law.  On  the  other  hand  it  received 
in  other  regions  a  further  development  that  was  of  the  greatest 

1  Fehr,  "Fiirst  und  Graf  im  Saehsenspiegel",  K.  Sachs.  Gesell.  Wiss., 
LVIII  (1906),  1-99,  50  et  seq. 

2  Cf.  Fehr  in  Z^  R.  G.,  XXX  (1909),  278  et  seq. 

3Ssp.,    I.  52,    §   1.     Swsp.    (W),  349.      "Rechtsbueli    nach    Distink- 
tionen,"  I.  45,  §  1. 

247 


§  34]  THE    LAW    OF   THINGS  [BoOK   II 

importance  for  the  future.  The  custom,  especially  common  in 
North  German  cities,  of  entering  in  public  and  official  books 
all  transfers  of  land  that  were  consummated  and  confirmed  be- 
fore the  town  court  or  the  town  council  (supra,  p.  219),  had  the 
natural  result  that  the  entry  in  the  public  book  took  the  place 
of  the  documents  formerly  made  out  for  the  parties  concerning 
the  transaction  in  court,  as  the  official  evidence  that  at  once 
attested  and  gave  security  to  the  transfer  of  ownership.  Indeed, 
it  has  been  shown  that  already  in  the  ^Middle  Ages  the  book  entry 
became  in  some  cities  the  essential  and  consummative  part  of  the 
act  of  transfer.^  ^Vherever  this  was  the  case,  as  e.g.  in  Liibeck 
and  Bremen,  and  alike  in  the  cities  and  even  earlier  in  the  rural 
districts  of  the  lands  of  the  Bohemian  crown,  the  mere  ceremony 
of  surrendering  seisin  gradually  lost  its  independent  importance, 
and  finally  wholly  disappeared :  the  transfer  of  ownership  was 
perfected  by  the  registry  that  followed  the  contractual  agree- 
ment ;  and  even  judicial  seisin  was  associated  with  the  book  entry. 
The  act  of  registry,  from  being  mere  evidence,  had  thus  become  the 
consummative  act ;  and  the  principle  of  the  modern  law  of  land 
registry  had  thus  already  been  completely  realized.  At  the  same 
time  the  old  summons  of  adverse  claimants,  and  the  imposition 
of  the  court's  peace,  remained  in  practice.  This  was  so,  for  ex- 
ample, in  Breslau,  where  the  summons  persisted  until  the  end  of 
the  1700  s,  being  given  at  first  through  public  warning  by  the 
officials  who  executed  the  judgments  of  the  county  courts  ("Frone- 
boten  "),  later  through  i)ublic  posting  as  well,  and  after  17S7 
by  edicts,  advertisements  in  the  newspapers,  and  the  summons 
of  all  interested  parties  by  commission ;  while  the  laying  of  the 
court's  peace  was  effected  by  the  delivery  of  a  judicial  possessory 
patent  ("Besitzbrief ")  which  produced  at  the  same  time  the 
consequences  of  judicial  seisin. 

(Ill)  The  Developmont  since  the  Reception.  —  The  course 
of  development,  thus  far  logically  progressing,  was  injuriously  in- 
terrupted by  the  reception  of  the  Roman  law,  which  rested  upon 
bases  wholly  different.  According  to  the  Roman  law  the  con- 
veyance of  lands  as  well  as  of  movables  was  effected  by  informal 
delivery  of  i)ossession ;  in  the  case  of  the  "  constitutum  posses- 
sorium  "  and  the  "  brevi  manu  traditio  ",  the  tradition  did  not 
require  even  a  corporeal  delivery.  The  cooperation  of  a  court  and 
the  official  registration  of  transactions  in  lands  was  to  it  unknown, 
for  it  attached  no  importance  to  tlie  publicity  of  such  transac- 
»  Gierke,  "Privatrecht",  II,  281. 
248 


Chap.  VI]  THE   LAW   OF  LAND  :     OWNERSHIP  [§  34 

tions.  And  the  rules  of  the  Roman  law  became,  —  aside  from  the 
feudal  law,  which  maintained  the  institute  of  investiture,  —  the 
common  law  of  Germany.  This  common  law,  however,  proved 
incapable  of  achieving  complete  supremacy,  and  even  of  holding 
i'S  ground  in  more  than  a  few  districts  of  Germany.  The  par- 
ticularistic legal  systems  preserved  more  or  less  perfectly,  or 
returned  to,  the  native  principles ;  although  not  indeed  without 
manifold  changes,  and  combination  with  the  alien  rules,  "  There 
thus  originated  a  confused  wealth  of  variant  systems."  ^  They 
may  be  classified  in  the  following  groups. 

(1)  Delivery  associated  with  Formal  Contract.  —  Even  of 
those  legal  systems  that  adopted  the  Roman  principle  only  very 
few  (e.g.  the  revised  Mecldenburg  Ihq^othec  Ordinance  for  Rural 
Estates,  of  October  18,  1848),  made  the  change  of  attributing  the 
transfer  of  ownership  exclusively  to  the  informal  act  of  tradition. 
Most  of  them  required,  in  addition  to  the  tradition,  a  contract  of 
alienation  concluded  in  a  definite  form.  Indeed,  the  contract  was 
required  to  be  of  judicial  character :  the  parties  must  bring  it  to 
the  knowledge  ("  insinuieren  ")  of  the  judge,  and  cause  it  to  be 
confirmed  ("  konfirmieren  "),  that  is  registered  in  the  records  of 
the  court.  In  this  connection  there  was  imposed  upon  the  judge 
the  duty  of  making  a  far-reaching  and  substantial  test  of  the  trans- 
action. In  most,  although  not  in  all,  legal  systems,  the  obser- 
vance of  the  prescribed  form  was  a  necessary  precondition  to  the 
validity  of  the  contract,  and  so  to  the  efficacy  of  the  tradition. 
This  Avas  true  of  Electoral  Hesse,  Brunswick,  the  code  of  Solm,  a 
few  Saxon  statutes,  and  others ;  also  of  the  French  and  some 
of  the  German  cantons  of   Switzerland  from  the  1500  s  onward. 

(2)  Delivery  associated  with  Registry.  —  Doubtless  the  most 
extensive  group  was  constituted  of  those  systems  which,  though 
they  recognized  the  transfer  of  owniership  by  tradition  after  a 
precedent  and  formal  contract,  nevertheless  required  registration 
in  public  books  for  the  full  transfer  of  all  rights  involved  in  owner- 
ship. In  particular,  they  granted  solely  to  the  registered  owner 
the  right  to  create  pledge  or  other  charges  requiring  registration  ; 
he  alone  acquired  a  perfect  ownership.  There  existed  here, 
therefore,  the  possibility  of  a  double  ownership ;  of  a  true  or  sub- 
stantial ownership  which  passed  by  mere  tradition,  in  accord 
with  a  contract  of  alienation  formally  correct,  and  a  formal  or 
"  book  "  property  which  was  acquired  only  by  registration  in  the 
land  or  mortgage-book,  and  which,  when  no  tradition  had  taken 

1  Gierke,  "  Privatrecht  ",  II,  282. 
249 


§  34]  THE    LAW    OF   THINGS  [BooK   H 

place,  was  in  truth  no  ownership,  but  a  mere  dispositi^'e  power 
under  the  rules  of  the  registry  system.  The  Prussian  law,  as 
based  upon  the  "  Allgeraeines  Landrecht  "/  was  an  illustration 
of  this  system  until  the  year  1872.  It  required  the  precedent  con- 
tract to  be  written,  and  in  order  to  ])revent  so  far  as  possible  a 
conflict  between  the  substantive  and  the  formal  right,  the  owner 
was  compelled,  from  1783  to  1831,  under  statutory  penalties,  to 
register  his  title  in  the  land-book  (so-called  "Zwangstitelberechti- 
gung",  "title  by  right  of  compulsory  registration").  To  the 
same  system  belonged,  until  1900,  the  law  of  Bavaria  to  the  East 
of  the  Rhine,  which  required  the  contract  of  alienation  to  be  con- 
cluded before  a  notary,  and  the  law  of  Wiirttemberg,  which  required 
a  written  contract. 

(3)  Release  in  Court  ("  gerichtliche  Auflassung  ").  — The  form 
of  conveyance  developed  by  the  native  law,  —  namely,  a  release 
or  surrender  of  seisin  in  court,  with  or  without  subsequent  regis- 
tration, such  registration  being  either  a  mere  record  or  an  essen- 
tial to  and  the  consummative  element  in  the  act  of  transfer, — 
maintained  itself  in  the  Saxon  common  law,  in  many  systems  of 
town  law,  and  in  some  of  the  Territorial  systems.  The  Saxon 
common  law,  however,  attributed  certain  effects  to  the  tradition, 
also ;  so  that,  here  again,  there  resulted  a  possibility  of  two  kinds 
of  ownership.  The  acquirer  received  possession  by  title  of  natural 
right  ("  titulirter  Besitz  "),  or  "  dominium  naturale  ",  upon  the 
strength  of  the  mere  tradition,  whereas  relcaseof  seisin,  even  without 
registration,  created  what  was  called  "dominium  civile."  This 
resulted  from  release  by  the  alienor  to  the  judge  and  enfeoffment 
of  the  acquirer  by  the  judge  (so-called  "allodial"  investiture). 
Bremen  also  was  contented  with  a  declaration  of  conveyance 
judicially  attested.  On  the  other  hand,  the  law  of  Liibeck,- 
Ilamburg,  Berlin,  and  INIunich,  as  well  as  the  Hanoverian 
and  Mecklenliurg  legal  systems,  and  some  Territorial  systems, 
required  surrender  in  court  with  subsequent  registration.  In 
the  Austrian  land-"  tablet  "  system  the  act  of  registry  remained 
the  act  that  (Tcatcd  rights,  and  this  j)rincij)le  was  elevated  to  the 
rank  of  a  general  rule  in  the  Austrian  Code.^     Also  in  Switzer- 

'  All(?.  L.  R.,  T,  U),  §  1  :  "Tho  derivative  acquisition  of  property  in  a 
thing  requires,  in  addition  to  the  necessary  title  thereto,  the  actual  delivery 
of  the  same."  §  6:  "Nev^ertheless,  whoever  desires  to  dispose  of  land 
by  transactions  in  court  must  cause  to  be  .  .  .  registered  in  the  mort- 
gage-record the  property-right  therein   whicli  he  so  acquires." 

\Rei>.  Liih.  /?.,  Ill,  (),1.  2. 

'  Ostcr.  (I.  B.,  §  431  :  "It  is  necessary  for  the  conveyance  of  ovvnershij) 
in  immovable  things  that  the  transaction  of  conveyance  be  entered  in  tlio 

250 


Ch.\p.  VL]  the  law  of  land  :    ownership  [§  34 

land  the  old  judicial  "  Fertigimg  "  was  preserved  in  many  places, 
particularly  in  the  rural  districts  of  the  cities  and  in  the  common 
domains  of  the  German  cantons ;  but  it  was  transformed  into  a 
"  means  of  official  protection  for  inexperienced  subjects  ",  and 
often  treated  as  a  binding  form  of  contract.^ 

(4)  Transcript  System,  or  the  System  of  the  French  Laic.  —  In 
France,  where  only  a  few  bodies  of  customary  law  in  the  North 
(the  so-called  "  coutumes  de  nantissement  ")  held  to  a  form  of 
conveyance  in  court  that  corresponded  to  the  German  "Auflas- 
sung  ",  there  had  developed  as  a  common  law  of  the  "coutumes" 
(as  distinguished  from  the  German  and  Roman  systems)  the  prin- 
ciple that  ownership  was  transferable  by  mere  contract  without 
tradition.  This  doctrine  was  borrowed  from  the  Italian  doctrine 
of  "  traditio  ficta  " ;  which  also  acquired  authority  in  Germany 
in  the  "usus  modernus  Pandectarum"  (supra,  p.  215).  It  was 
accepted  by  the  Code  Civil.^  A  so-called  transcript,  that  is,  a 
written  copy  of  the  contract  entered  in  a  judicial  register, — which 
in  the  systems  of  Northern  French  law  just  referred  to  was  oblig- 
atory, —  was  required  by  the  Code  only  in  certain  cases,  as  for 
example  in  those  of  gifts.  But  it  was  later  raised  to  the  position 
of  a  general  and  essential  requisite  by  a  statute  of  1855,  in 
that  the  validity  of  the  title  acquired,  as  against  third  parties, 
was  made  dependent,  thenceforth,  upon  it.  In  this  form  the 
French  law  retained  authority  in  Alsace-Lorraine  until  1900; 
in  the  other  regions  of  French  law  in  Germany  the  rule  of  the 
Code  Civil  had,  for  the  most  part,  been  similarly  altered  from 
the  beginning  (so  in  Baden  and  Hesse). 

(IV)  The  Latest  Stage  of  Development.  —  In  the  1800  s,  in 
consequence  of  the  renewed  vitality  shown  by  the  land  registry 
system,  the  principles  of  Germanic  law  gained  that  ascendancy  in 
respect  to  conveyances  of  land  which  they  already  enjoyed  in  other 
matters.  Wherever  they  had  continuously  maintained  their 
authority,  or  had  already  been  reintroduced,  they  were  now,  in 
many  States,  extended  and  affirmed  by  modern  statutes.  This 
was  true,  above  all,  of  the  modern  Mecklenburg  statutes  already 
referred  to  {supra,  p.  228, — the  Town-book  Ordinance  of  1829, 

public  books  appointed  for  that  purpose.  Such  entry  is  known  as  'in- 
corporation' ('Einverleibung')  or 'intabulation'  ('Intabulation')." 

1  Huhcr,  "Schw.  Privatrccht ",  IV,  710. 

-Code  Civil,  Art.  158.3:  "The  sale  is  complete  between  the  parties, 
and  the  title  has  passed,  in  law,  to  the  vendee  as  respects  the  vendor, 
from  the  instant  that  tliey  have  agreed  upon  the  thing  and  the  price, 
even  lliough  the  thing  may  not  yet  have  been  delivered  nor  the  rrice 
paid." 

251 


§  34  ]  THE    LAW    OF   THINGS  [BoOK   II 

the  Wismar  Town-Book  ordinance  of  1838,  the  revised  Town- 
book  ordinance  of  1857,  the  Hypothec  Ordinance  for  crown  lands 
of  1854)  ;  further,  in  the  Ilanse  towns,  in  most  of  the  minor 
Saxon  States,  in  tlie  kingdom  of  Saxony  (statute  of  1843  and 
Civil  Code),  and  in  Austria  (statute  of  1871).  In  the  same  way, 
in  many  legal  systems  of  German  Switzerland  "entry  in  the  land- 
book  acquired  all  the  imi)ortance  of  the  tradition  of  a  ])iece  of 
land,  so  that  the  ownership  of  such  could  be  conveyed  by  it 
and  by  it  alone."  ^  Within  the  regions  of  the  "  tradition  "  and 
"  transcript  "  systems  the  elements  of  Germanic  law  were  also 
strengthened  by  modern  legislation, — as  in  Bavaria,  Wiirttem- 
berg,  Brunswick,  and  Hanover  ;  in  some  of  them,  indeed,  it  went 
over  completely  to  the  Germanic  system,  as  for  example  in  Hesse- 
Darmstadt.  But  of  greatest  importance  was  the  Prussian  legis- 
lation, which  established  new  regulations  in  place  of  those  of  the 
old  Territorial  law  in  the  statutes  of  1872  (supra,  p.  222),  which 
were  drawn  up  after  long  preparations.  In  normal  cases  of 
voluntary  conveyance  they  required  release  and  registration.^ 
The  release,  which  therefore  replaced  the  tradition  of  the  Terri- 
torial systems,  results  from  the  oral  declarations  simultaneously 
made  before  the  appropriate  registry  office :  by  the  registered 
owner  that  he  assents  to  the  registration  of  the  new  acquirer,  and 
by  the  latter  that  he  desires  such  registration.  This  new  release 
of  the  Prussian  law  was  therefore  an  "  abstract  "  legal  transaction, 
for  it  based  the  acquisition  of  title  upon  the  naked  declaration  of 
a  will  to  convey,  regardless  of  all  reference  to  the  transaction  that 
underlay  this.^  With  tliis  change  the  Prussian  law  returned  to  the 
old  Germanic  principles ;  and  this,  not  alone  in  that  a  real  con- 
tract concluded  in  a  definite  manner  again  became,  in  the  form  of  a 
release,  an  essential  part  of  the  act  of  con\'eyance,  but  also  in  the 
further  fact  that  the  real  ("dinglich  ")  juristic  act  was  thenceforth 
separated  from  the  precedent  transaction  that  created  the  legal 
duty  to  perform  under  the  law  of  obligations.  And  as  the  medi- 
eval law  required  investiture  in  addition  to  the  "  Sala  ",  so  the 
Prussian  system  required  registration  in  addition  to  release.  For 
while  many  other  legislative  systems  (e.g.  those  of  Liibeck,  Ham- 
burg, the   Kingdom   of  Saxony,  certain  Mecklenburg  statutes) 

*  Huher,  op.  cit.,  711. 

2  Prussian  Act  roerulatinf?  acquisition  of  title  ("Eiffcntumserwerbs- 
gesotz")  of  May  .5,  1S72,  §  1  :  "  In  case  of  a  voluntary  xalienation,  property 
in  land  is  ar-quired  solely  throufrh  the  recording  of  the  title-transfer  in  the 
land-hook,  following  a  release." 

^  Dcrnburg,  "Lelirbuch  des  preussischen  Privatrechts",  I,  §  240. 

252 


Ch.\p.  VL]  the  law  of  land  :    ownership  [§  35 

attributed  outright  to  the  registration  the  power  to  create  and  to 
destroy  rights,  the  Prussian  statutes  permitted  transfers  of  title 
by  release  only  when  united  with  registration  in  the  land-book ; 
herein  agreeing  with  the  old  law,  which  recognized  such  a  creative 
force  in  the  registry  only  in  exceptional  cases,  and  following  the 
Austrian  law  and  the  majority  of  modern  systems.  The  stat- 
utes of  1872,  which  were  originally  issued  only  for  the  regions  of 
the  Territorial  law,  were  gradually  introduced  throughout  the 
entire  Kingdom ;  last  of  all  in  the  Rhine  Pro\'ince  in  1888  and 
1896,  in  Frankfort  o.  M.,  in  the  former  landgraviate  of  Hesse  and 
in  the  districts  formerly  belonging  to  the  grand-duchy  of  Hesse 
in  1895,  and  in  Lauenburg  in  1896.  In  Helgoland  and  Nassau 
alone  they  acquired  no  validity.  They  served,  further,  as  a 
model  in  a  number  of  other  German  States :  Oldenburg,  Ko- 
burg-Gotha,  Anhalt,  Brunswick,  Waldeck,  Lippe,  Schwarzburg- 
Sondershausen,  Schaumburg-Lippe. 

But  what  is  most  important,  the  principles  of  the  Prussian  law 
have  passed  over  in  all  essential  points  into  the  new  Ci\'il  Code 
and  the  German  Land-book  Ordinance,  Here  again,  therefore, 
the  restoration  of  legal  unity  signified  at  the  same  time  a  victory 
for  native  legal  ideas.  In  Switzerland,  too,  these  have  been  uni- 
versally established :  the  Swiss  Civil  Code  requires  registration 
in  the  land-book  under  all  circumstances  (§  656)  for  the  acquisi- 
tion of  ownership  in  land,  and  official  record  of  every  contract 
designed  to  convey  ownership  (§  657). 

§  35.  Acquisition  of  Ownership  otherwise  than  by  Contract. 
(I)  Occupancy.  —  The  oldest  mode  of  acquiring  ownership  in 
land  was  by  occupancy  ("  Aneignung ",  "  Okkupation  ")  of 
ownerless  or  conquered  land  ;  so-called  "  Landnahme."  Under- 
taken by  the  entire  folk  or  by  the  larger  divisions  in  which  this 
was  organized,  such  occupancy  resulted  in  a  collective  ownership 
by  the  folk  ("  folk-land  ") ;  out  of  which  there  developed,  in 
time,  as  has  been  already  shown  (supra,  p.  115  et  seq.),  a  col- 
lective ownership  of  the  sib  and  of  the  mark-association,  and 
finally  individual  ownership.  Wherever  a  monarchy  arose,  the 
land  so  occupied  fell  to  the  king  as  the  representative  of  the  folk 
("  Konigsland  ",  royal  demesne),  and  the  rule  of  law  took  form  that 
the  king  possessed  the  right  of  occupancy  over  all  land  that  had 
no  lord.  The  unlimited  right  that  had  originally  inliered  in  the 
mark  associates  of  laying  hold  of  wild  land,  particularly  the  pri- 
meval forest,  by  clearing  it,  suffered  a  material  restriction.  Only 
as  regards  the  commonties  were  they  still  permitted  to  exercise 

253 


§  35]  THE    LAW    OF   THIXGS  [BoOK   II 

it ;  either  freely,  or  else  within  sueh  limits  as  were  set  by  the  as- 
sociation. Beyond  these,  clearings  reqnired  thenceforth  the  ap- 
proval of  the  king.  From  the  royal  right  of  occupnnci/  of  ownerless 
lands,  which  was  thus  recognized,  in  Germany  as  early  as  in  the 
Carolingian  period,  and  which  the  king  exercised  by  means  of 
ban,  there  developed  a  regality  in  the  soil  of  the  country  ("Boden- 
regal").  This  passed  during  the  ^Middle  Ages,  along  with  other 
regalities  (infra,  §38),  to  the  Territorial  princes;  and  its 
influence  continued  to  be  felt  after  the  development  of  the  modern 
State  in  the  rule,  thenceforth  frequently  recognized,  as  for  example 
by  the  Code  Civil  (supra,  p.  161),  that  the  ownership  of  all  other- 
wise ownerless  land  is  in  the  State.  ]\Iost  of  the  regional  legal  sys- 
tems retained  this  regality.  On  the  other  hand  a  few,  including  the 
Prussian  "Landrecht"  and  the  Saxon  Code,  again  relaxed  the 
principle,  returning  to  the  old  view  that  the  State  enjoys  merely 
an  exclusive  right  of  occupancy  in  ownerless  lands.  The  present 
Civil  Code  has  also  adopted  this  rule  (§  928),  thereby  defi- 
nitely rejecting  the  Roman  principle  of  free  occupancy  of  owner- 
less land  which  had  been  received  as  common  law  in  Germany. 
In  comparison  with  this  right  of  occupancy  inhering,  in  principle, 
in  the  fisc,  little  attention  is  merited  by  those  few  cases,  preserved 
intact  by  the  Introductory  Statute  to  the  Civil  Code,  in  which 
it  can  still  be  exercised  by  private  persons,  —  as  for  example  by 
the  commune  according  to  the  town  law  of  Munich,  and  by  the 
possessors  of  manorial  estates  according  to  the  Silesian  law  regu- 
lating the  right  of  pasturage.  Moreover,  in  accordance  with  the 
principle  of  land  registry,  the  acquisition  of  ownership  itself  re- 
sults, at  present,  only  when  the  person  entitled  to  occupancy 
causes  himself  to  be  registered  in  the  land-book.  The  viewpoint 
of  the  Swiss  Civil  Code  is  somewhat  different,  inasmuch  as  it 
treats  ownership,  in  cases  of  occupancy,  as  originating  before 
registry,  but  gives  the  acquirer  the  right  of  disposing  of  the  land 
only  after  registry  (§  656,  2)  ;  moreover,  it  leaves  to  cantonal  law 
the  regulation  of  the  occupancy  of  ownerless  land,  which  it  classes 
as  an  exercise  of  sovereignty  (§  664). 

(II)  Positive  Prescription.  —  Positive  (acquisitive)  prescrip- 
tion was  unknown  to  the  older  German  land-law  as  a  mode  of  ac- 
quiring ownership.  For  judicial  seisin,  which  performed  in  many 
respects  the  functions  of  that  principle,  itself  rested  upon  a  pre- 
supposed acquisition  of  ownership  alreatly  perfected.  With  the 
Reception  there  was  of  course  adopted  the  Roman-Canon  doctrine 
of  usucapion,  of  which,  moreover,  earlier  traces  can  be  recognized 

254 


Chap.  VL]  THE  LAW  OF  land  :    ownership  [§  35 

in  the  folk-laws.     This  not  only  became  the  common  law,  but 
penetrated  as  well  into  many  of  the  regional  systems.     According 
to  that  doctrine,  land  could  be  acquired  by  "  ordinary  "  usucapion 
upon  the  basis  of  possession  in  good  faith  and  with  color  of  title 
("title  of  natural  right")   in  ten,  or  as  the  case  might  be  twenty, 
years;    and  by  "extraordinary"  usucapion  upon  the  basis  of 
possession  in  good  faith  during  thirty  years.      The  persistence 
of  native  legal  customs,  however,  was  shown  by  the  fact  that  the 
Roman  periods  of  prescription  were  not   everywhere  retained, 
but  were  frequently  replaced  by  the  Germanic  period  of  a  year  and 
a  day,  or  united  with  the  same  (the  Saxon  common  law  for  example 
required  31  years  6  weeks  and  3  days) ;   and  moreover  the  entire 
institute  contradicted  the  system  of  land  registry.     Hence  it  is 
that  many  modern  statutes  or  legal  systems  have  absolutely  done 
away  with  positive    prescription  as  regards  all    lands  that  are 
registered  in  the  land-book,  —  as  for  example  the  Saxon  Code, 
the  law  of  Hamburg  and  Liibeck,  of  Brunswick  and  of  Mecklen- 
burg;  while  others,  as   the  Prussian  Act  of    1872,  exclude  it  as 
against  a  registered  owner.     Only  a  few  —  e.g.  certain  statutes  of 
Mecldenburg  and  the  Austrian  Code— have  recognized  such  a 
prescriptional  title  as  capable  of  registration.     The  present  Ger- 
man Civil  Code  has  repudiated  any  and  all  prescription  contra- 
dictory of  the  contents  of  the  land-book.     On  the  other  hand, 
following  the  example  of  the  Austrian  Code  and  a  Hessian  statute 
of  1852,  it  has  adopted  (§  900)  what  is  called  "  tabular  "  or  "  book" 
usucapion :    whoever  has  been    wrongly  registered  in  the  land- 
book  for  thirty  years  as  the  owner  of  a  piece  of  land,  —  that  is, 
without  having  meanwhile  acquired  ownership,  —  and  has  been 
at  the  same  time  the  exclusive  possessor  of  such  land,  acquires  the 
ownership  thereof,   regardless  of  good  faith  or  of  any  further 
title.     Further,  in  place  of  positive  prescription  it  has  introduced 
(§  927)    a    mode    of    acquiring    ownership   that   was    unknown 
to  the  earlier  law,  namely  that  of  citation  ("  Aufgebot  ").     "Who- 
ever has  had  a  piece  of  land  in  his  exclusive  possession  for  thirty 
years,  may  demand  the  institution  of  a  citation-procedure  against 
the  owner,  and  if  the  owner  is  excluded  from  rightful  claim  thereto 
as  the  result  of  this  citation  procedure,  the  possessor  can  then 
require  the  registration  of  himself  as  owner.     Similar  provisions 
are  to  be  found  in  the  Swiss  Civil  Code,  save  that  it  has  reduced 
the  period  for  acquisitive  prescription  by  one  wrongly  registered 
(so-called  "ordinary"  usucapion)  to  ten  years  (§  661). 

(HI)    Still  other  cases  in  which  title  is  acquired  otherwise  than 

255 


§  35]  THE    LAW    OF   THINGS  [BoOK   II 

by  contract  are  acquisition  by  inheritance,  and  acquisition  by  a 
declaration  of  the  State's  will.  According  to  Germanic  law, 
from  the  earliest  times,  the  former  was  perfected  by  the  sole  fact 
of  death,  and  has  therefore  generally  been  regarded  as  needing 
no  registration  even  under  the  law  of  land  registry  {cf.  the 
chapter  on  inheritance,  infra).  Under  the  latter  belonged  the 
judicial  adjudication  of  the  older  law,  which  was  sometimes  the 
truly  consummative  element  in  the  institute  of  release  ("  Auflas- 
sung  "),  as  for  example  in  what  was  known  as  allodial  investiture 
{supra,  p.  250) ;  and  in  the  modern  law,  among  other  institutes, 
the  adjudication  of  property  to  the  highest  bidder  in  forced  sales 
in  execution  proceedings  (regulated  today  for  the  whole  Empire  by 
the  imperial  act  concerning  forced  sales  and  sequestration  in 
execution  proceedings,  of  March  24,  1897).  Another  class 
of  cases  belonging  here  is  that  in  which  ownership  is  acquired 
by  expropriation. 

(IV)    Expropriation.^  —  This  we  may  more  particularly  consider. 

(1)  History.  —  In  expropriation  we  have  to  do  with  an  inter- 
ference by  the  State  with  landed  property  (rarely  with  any  other 
right  in  things)  which  is  taken  by  the  State,  subject  to  compen- 
sation, for  the  puri)ose  of  applying  such  things  to  an  end  required 
by  the  public  welfare.^  Expropriation  is  a  legal  institute  that  was 
unknown  both  in  antiquity  and,  although  indeed  for  other  rea- 
sons, in  the  early  Middle  Ages,  and  which  owed  its  appearance  to 
the  rise  of  the  modern  State.  So  long  as  associations  on  the  one 
hand,  and  Territorial  rulers  on  the  other  hand,  enjoyed  powers  of  a 
"  real  "  nature  that  restricted  the  priAate  ownership  of  individuals 
in  the  interest  of  the  whole  community  or  of  the  sovereign  power, 
there  were  lacking  the  preconditions  necessary  to  expropriation. 
This  made  its  first  appearance  in  the  cities.  Indeed,  the  com- 
munity as  an  independent  holder  of  rights  was  there  first  developed, 
its  legal  relations  to  its  members  being  purely  those  of  public  law. 

The  earliest  cases  in  which  a  true  expropriation  was  exercised 
come  therefore  from  the  legal  life  of  the  cities.  Expropriation  of 
landed  property  by  municipal  authority,  against  compensation, 
for  the  purpose  of  erecting  walls,  towers,  and  fosses,  occurred  in 
Italian  cities  as  early  as  the  llOOs  and  from  the  1300  s  onward 
in  Germany ;  at  first  only  in  individual  cases  (c.f/.  an  expropriation 

>  Cninhut,  art.  "Enteiffnunp:"  in  H.  W.  B.  dor  Staatsw.,  Til  (3d  od., 
1909),  9.')5  et  .fcf].;  /vaver,  "  Prinzipien  des  Entoignunfrsreohts"  (1902); 
Schdchcr,  art.  "KntriKiuinK"  in  v.  Sicngcl-Fleischmnnn,  "  W(>rt('rl)m'h  des 
deutsehen  Staats-  und  Vcrwaltungsrechts",  I  (2d  ed.,  1911),  717-730. 

^  Gierke,  "Privatrecht",  II,  464. 

256 


Chap.  VI]  THE   LAW   OF   LAND  :     OWNERSHIP  [§  35 

for  the  laying  out  of  a  public  canal  through  the  Tullner  Feld  near 
Vienna)  and  later  in  accord  with  general  regulations.  Thus, 
different  town-laws  gave  to  the  council  authority  to  cause  a 
house  to  be  razed  in  order  to  prevent  the  further  spread  of  fire 
(Liineburg,  Breslau,  Munich),  or  to  remove  any  house  whatever 
within  the  limits  of  the  municipal  jurisdiction  in  case  of  the  ur- 
gent need  of  the  community  (as  in  an  ordinance  of  Schaffhausen 
of  1380).  This  idea  found  special  application,  later,  in  mining 
law  and  in  the  dike-law :  the  mining  ordinances  from  the  1400  s 
onward  imposed  upon  land-o^^^lers  the  duty  of  conveying  to  any- 
body desirous  of  opening  a  mine  upon  their  land  the  land  necessary 
for  that  purpose,  in  exchange  for  proper  compensation.  From  the 
time  of  the  Glossators  jurists  were  solicitous  to  establish  a  principle 
that  would  cover  such  interference  by  the  State  in  private  owner- 
ship ;  a  principle  difficult  to  reconcile  with  the  Roman  law.  In  this 
the  Law  of  Nature  first  succeeded,  owing  to  its  deeper  insight  into 
the  nature  of  the  State.  It  traced  such  interference  back  to  that 
general  power  of  sovereignty  recognized  by  men  in  the  interest  of 
the  common  weal  which  was  set  up  by  Hugo  Grotius,  the  founder 
of  the  doctrine,  and  which  was  called  "  ius  eminens  ",  and  later 
"  imperium  "  ;  and  to  this  power  of  the  State  it  fixed  sharp  limits, 
under  the  determinant  influence  of  Montesquieu,  by  recognizing 
in  theory  the  inviolability  of  ownership,  by  requiring  under  all 
circumstances  a  "  iusta  causa  ",  and  by  giving  to  the  dispossessed 
owner  a  claim  for  full  damages.  These  principles  were  first  put 
in  practice  in  France.  The  right  of  expropriation  within  these 
limits  was  recognized  in  the  Declaration  of  the  Rights  of  Man, 
and  in  the  constitutions  of  1791  to  1852.  Of  epoch-making 
importance  was  a  statute  of  March  8,  1810,  which  first  laid 
down  the  rule  that  expropriation  might  be  decreed  by  judicial 
authority  only,  "  and  which  constitutes  the  true  basis  of  all 
modern  legislation  upon  this  subject,  at  once  as  regards  its 
spirit  and  its  principles."  ^  In  Germany  the  doctrines  of  the 
Law  of  Nature  had  earlier  found  adoption  in  the  great  codes, 
namely  in  the  "  Landrecht  "  of  Bavaria  and  of  Prussia,  and 
in  the  Austrian  Code ;  they  were  later  laid  down  in  most  con- 
stitutions.'    The  further  elaboration  of  the  law  of  expropriation 

1  Griinhut,  article  just  cited,  627. 

2  For  example  tlie  Prussian  constitution,  Art.  9:  "Property  is  invio- 
lable. It  can  he  taken  away  or  limited  solely  for  reasons  of  public  welfare 
and  in  exchauf^e  for  prior  compensation,  —  which  even  in  pressing  cases 
must  be  at  least  provisionally  settled,  —  in  accordance  with  statutory 
provisions." 

257 


§  35]  THE    LAW    OF   THINGS  [BoOK   II 

whith  aoqiiired  extraordinary  importance,  especially  as  regards 
the  development  of  railroads,  was  effected  by  special  statutes, 
for  which  French  lesiislation  afforded  the  model.  While  these 
statutes  at  first  attributed  expropriating  })ower  to  the  State  for 
definite  and  occasional  })urposes  only,  later  statutes  regulated 
the  entire  institute  comprehensively,  and  with  attentioii  to  theory. 
This  was  first  true  of  a  Hessian  statute  of  1821  ;  it  was  followed 
by  Baden  in  1835,  by  Bavaria  in  1837,  and  by  others.  In  Prussia 
there  was  passed  a  general  act  upon  the  subject,  of  June  11,  1874. 
Many  other  German  States  have  passed  acts  modeled  upon 
this,  and  many  others  have,  like  Ilesse,  replaced  their  older 
by  more  modern  statutes.  Inasmuch  as  the  riglit  of  expropri- 
ation crosses  the  limits  between  j)rivate  and  public  law,  it  has  been 
preserved  by  the  Introductory  Statute  of  the  present  Civil  Code 
(EG,  §  109)  to  State  regulation. 

(2)  General  Features  of  the  existing  Law  of  Expropriation.  — 
Although  the  legal  nature  of  expropriation  is  much  disputed, 
Gierke^  has  conclusively  shown  that  if  rightly  considered  it  is  not 
a  juristic  act,  and  so  not  at  all  in  the  nature  of  a  forced  sale,  but 
a  proceeding  of  public  law,  a  unilateral  declaration  of  the  will  of 
the  State  involving  effects  in  pri\-ate  law.  By  this  ]:)rocccding 
there  is  perfected  a  transfer  of  a  private  right,  ordinarily  that  of 
ownership,  from  a  person  dispossessed  thereof  to  one  who  acquires 
it  without  any  prior  acquisition  of  the  thing  by  the  State ;  and 
there  is  established  an  obligatory  relation,  in  the  sense  of  private 
law,  between  such  person  dispossessed  and  such  acquirer,  but  not 
between  the  latter  and  the  State.  Expropriation  is  permissible 
only  Avlien  it  is  required  by  an  undertaking  in  whose  realization 
there  is  involved  a  public  interest.  The  decision  of  the  question 
whether  that  is  the  case,  whether  there  exists  a  case  proper  for 
expropriation,  is  made  either  directly  by  special  statute,  or,  as  is 
usual  in  modern  law,  by  an  administrative  act  of  government  de- 
claring the  preconditions  generally  established  in  the  statute  to 
be  satisfied  in  the  particular  instance  in  question.  Only  the 
State  can  expropriate,  is  expropriator.  But  it  is  true  that  he  in 
whose  favor  expropriation  is  made,  to  whom  the  so-called  right  of 
expropriation  is  giv  en,  is  commonly  also  called  the  exjiropriator ; 
this  may  be  equally  well  either  the  State  itself  or  any  other  person 
(the  "entrepreneur").  The  "  cntrc])reneur  "  receives  a  sub- 
jective right  which,  although  founded  upon  a  public  act,  is  directed 
to  the  acquisition  of  a  private  right,  and  which  we  may,  with 
'  "Privatrecht",  II,  464  et  seq. 
258 


Ch.\p.  VL]  the  law  of  land  :    ownership  [§  3G 

Gierke,  class  among  personal  rights.  In  a  very  great  majority 
of  cases  the  object  of  expropriation  is  the  ownership  of  land,  which 
may  be  taken  by  expropriation  either  in  whole  or  only  in  part ; 
but  every  other  limited  real  right,  even  the  right  of  an  ordinary 
or  of  a  usufructuary  lessee,  can  be  expropriated.  Expropriation 
takes  place  only  with  compensation  to  him  who  is  deprived  of 
property,  for  which  compensation  the  "  entrepreneur  "  is  respon- 
sible. The  compensation  must  be  full.  In  its  calculation  the 
value  of  the  thing  to  be  conveyed  is  taken  as  the  basis ;  namely, 
the  value  which  it  has  objectively  (market  value)  and  to  the  in- 
dividual owner,  —  not  a  possible  ideal  value  or  affection  value ; 
and  in  such  calculation  account  is  taken  of  the  damage  which  the 
owner  suffers  in  consequence  of  the  conversance,  including  pro- 
spective profits  thereby  sacrificed.  A  specially  regulated  adminis- 
trative procedure  has  been  introduced  for  the  enforcement  of  ex- 
propriation. According  to  the  Prussian  statute,  and  to  most 
others,  its  first  step  is  the  identification  of  the  object  to  be 
expropriated ;  and  this  upon  the  basis  of  a  map  ("  Feststel- 
lungsplan  "),  which  in  case  reclamations  are  made  by  interested 
parties  is  tested  by  the  evidence  of  witnesses.  In  most  cases  it 
is  thereafter  definitively  defined  by  administrative  decree.  In 
the  absence  of  an  agreement  of  the  parties,  the  damages  are 
next  fixed ;  again,  as  a  rule,  by  decree  of  the  administrative 
officials ;  but  from  this  decree  an  appeal  is  allowed  in  all  cases 
to  the  courts.  Finally,  the  procedure  is  ordinarily  ended  by 
a  formal  judgment  of  expropriation  rendered  by  the  board.  This 
completes  the  transfer  of  the  real  rights  involved,  without 
any  entry  for  that  purpose  in  the  land  register.  But,  since  an 
error  is  thus  introduced  into  the  register,  there  must  be  a  cor- 
rection, which  is  usually  effected  at  the  instance  of  the  board. 
§  36.  General  Restrictions  upon  Ownership.  (I)  Source  and 
Classes  of  General  Limitations  upon  Ownership.  —  Notwithstand- 
ing that  ownership  assures  the  fullest  control  of  a  thing  recog- 
nized by  private  law,  no  legal  system  can  permit  an  unqualified 
exercise  of  such  control  in  the  case  of  land ;  for  a  piece  of  land  docs 
not  constitute  a  world  in  itself.  The  medieval  law,  in  adopting  as 
a  part  of  its  concept  of  ownership  the  essential  quality  of  limita- 
bility,  gave  particularly  sharp  expression  to  this  idea  from  the 
earliest  times  —  an  expression  sharper  than  that  given  it  in  the 
later  Roman  law,  although,  as  has  been  mentioned,  it  was  by  no 
means  unknown  to  the  Roman  theory.  To  this  was  added  the 
fact  that  the  after-effects  of  original  collective  ownership  persisted 

259 


§  36J  THE    LAW    OF   THINGS  [BoOK   II 

for  a  very  long  time  in  tlie  ^Middle  Ages,  and,  after  private  owner- 
ship in  land  had  been  developed,  resnlted  in  restrictions  upon 
landed  ownership  in  favor  of  the  family,  of  neighbors,  of  associ- 
ations, of  lordship,  and  of  the  State  (supra,  p.  227).  Thus  in  the 
older  law  a  manifold  restriction  of  ownership  in  land  was  the  rule ; 
and  a  complete  transformation  of  the  economic  and  social  bases 
of  the  legal  order  was  necessary  before  the  principle  of  freedom 
derived  from  Roman  law  could  be  given  as  full  i)ractical  effect 
in  relation  to  ownership  of  land  as  in  the  case  of  other  property. 
By  no  means  all  limitations  were,  indeed,  in  this  way  done  away 
with,  or  their  creation  made  impossible  for  the  future ;  but  they 
were  henceforth  (what  they  were  not  before)  exceptions  to  the 
general  rule. 

AVe  are  here  concerned  solely  with  limitations  that  exist  for  all 
times,  by  force  of  a  rule  of  law,  a  statute,  or  of  customary  right, 
and  not  with  such  as  are  agreed  upon  bet^\'een  the  parties  by  con- 
tract. They  protect  either  the  interest  of  the  public  or  that  of 
definite  individuals  as  against  the  owner ;  they  may  therefore  be 
designated,  in  those  cases  in  which, — to  use  modern  terms, — they 
find  expression  in  rules  of  pu})lic  law,  as  limitations  of  public  law ; 
and  in  those  where  they  give  rise  to  real  rights  of  individuals  in 
the  land  of  others,  as  restrictions  of  i)rivate  law.  It  must,  how- 
ever, be  noted,  that  in  protecting  individual  interests  the  public 
welfare  may  be  furthered  at  the  same  time ;  and  that,  in  particular, 
these  two  points  of  view  becam.e  distinct  only  very  late  in  the  course 
of  their  historical  development.  Above  all,  the  so-called  regalities 
were  a  mixture  of  elements  of  public  and  private  law ;  for  they 
clothed  sovereign  rights,  which  restricted  landed  ownership  in 
definite  respects,  in  the  cover  of  private  privileges. 

(II)  Restrictions  in  the  Public  Interest.  —  (1)  In  the  older 
law  numerous  limitations  were  imposed,  in  the  common  interest, 
vpon  the  dispositive  powers  of  owners.  Alienations',  charges  be- 
yond a  definite  amount,  and  above  all  partitions,  were  frequently 
prohibited,  many  estates  being  required  to  be  treated  as  impartible 
("geschlossene"),  as  contrasted  with  lands  subject  to  unrestricted 
charging  and  alienation  ("'walzende'  Grundstiicke  ",  "Wandel- 
iicker").  Impartibility  was  of  course  inconsistent  with  the 
Germanic  law  of  inheritance  {infra,  §§  43,  44,  lOo).  Nevertheless, 
eve; I  in  early  times  the  lords  of  manors  succeeded  in  establishing 
prohibitions  of  partitions ;  moreover,  no  feudal  tenant  whatever 
might  alter  the  "  body  "  of  the  land  he  held.  Later,  imparti- 
bility, especially  of  rural  lands,  was  cither  preserved  or  newly 

2G0 


Chap.  VI]  THE    LAW    OF   LAND  :     OWNERSHIP  [§  36 

introduced  by  State  legislation  in  the  general  interest  of  the 
country.  But  free  partibility  of  all  estates  was  recognized  by 
the  State  in  the  course  of  the  1800  s}  At  the  same  time,  in  order 
to  put  a  check  upon  the  minute  division  of  landed  holdings,  at 
least  formal  impediments  to  partition  have  been  quite  com- 
monly introduced  by  legislation  in  very  recent  years.  For 
example,  in  the  case  of  lands  subject  to  a  rent-charge  ("  Renten- 
giiter  ")  such  provisions  of  State  law  have  been  left  in  force 
in  Prussia  by  the  new  Civil  Code  (EG,  §  119,  Z2). 

(2)  Other  restrictions  imposed  in  the  public  interest  compel  an 
owner,  in  the  exercise  of  his  rights  of  ownership,  either  to  refrain 
from  certain  acts,  or  to  suffer  certain  interferences  with  his  rights, 
or  to  perform  certain  positive  acts. 

Thus  rural  landowners  were  bound  from  the  earliest  time  by 
the  compulsory  regulation  of  the  mark  arable  ("  Flurzwang  ") ; 
and  the  place  of  this  was  later  taken,  quite  commonly,  by  State 
legislation  that  controlled  the  agricultural  activity  of  individuals.^ 
In  modern  times  agriculture  has  been  freed  from  such  restrictions ; 
yet  even  to-day  the  police  power  exercised  over  agriculture  may 
interfere,  in  the  public  interest  and  in  definite  respects,  with 
private  management,  —  e.g.  under  the  imperial  Act  of  July  6, 
1904,  relative  to  the  phylloxera. 

A  police  power  over  buildings  already  existed  in  medieval  cities ; 
at  the  present  day  restrictions  of  municipal  building-codes  play 
an  important  role.  To  these  must  be  added  limitations  upon 
landed  ownership  necessitated  by  military  interests,  examples  of 
which  likewise  exist  in  medieval  systems  of  town-law.  Those  sub- 
ject to  imperial  legislation  are  regulated  to-day  in  the  Act  concern- 
ing fortification-zones  of  December  29,  1871,  and  in  the  Acts  of 
18G8,  1875,  1878,  1887,  and  1898  relative  to  military  burdens. 
Here  belong,  further,  those  limitations  that  result  from  the  police 
of  industry,  those  resting  upon  the  imperial  control  of  tele- 
graphic communication,  and  especially  all  those  restrictions 
that  are  to  be  regarded  as  outgrowths  from  earlier  regalities 

1  See  e.g.  the  Prussian  Edikt  of  Oct.  9,  1807,  §  4:  "The  possessors  of 
urban  ancl  rural  lands  and  estates  ('Giiter')  of  all  kinds,  wliieh  are  in 
nature  alienable,  ....  are  entitled,  subject  to  the  rights  of  creditors 
thereby  secured  and  of  persons  holding  preemption-rights,  to  partition 
liens  ('Radikahen')  and  appurtenances,  and,  generally,  to  make  partial 
alienations,  and  co-owners  shall  therefore  be  entitled  to  a  partition  among 
themselves." 

2  Compare,  for  example,  the  Prussian  AUg.  L.  R.,  II,  7,  §  8 :  "Every 
occupant  of  land  ('Landinann')  is  bound  to  conduct  economicallj'  the  cul- 
tivation of  his  land,  if  necessary  for  the  satisfaction  of  common  necessity 
('Nothdurft')." 

261 


§  36]  THE    LAW    OF   THINGS  [BoOK   II 

(infra,  §  38  etseq.).  Finally,  whenever  circumstances  of  necessity 
denuuul,  the  modern  State  chiinis  the  riglit  to  exercise  extensive 
poHce  powers  that  interfere  seriously  with  landed  ownership. 

(Ill)  Restrictions  imposed  in  the  Interest  of  Private  Individuals. 
—  (1)  Upon  l)i,siKMifiir  J\)tr('rs.  —  The  land  ownershij)  of  the  old 
law  derived  its  special  character,  in  which  it  so  sharply  differs 
from  the  law  of  to-day,  from  the  fact  that  only  exceedingly  few 
landowners  could  dispose  with  complete  freedom  of  their  land. 
Rights  of  individuals  or  of  groups,  which  they  were  bound  to 
respect,  stood  in  the  way.  In  the  case  of  alienations,  partitions, 
charges,  and  testamentary  dispositions,  members  of  the  family, 
conventional  co-heirs,  and  members  of  herital-fraternities,  mem- 
bers of  the  mark,  and  feudal  and  other  land-lords,  had  rights  of 
co-operation  or  of  assent,  rights  in  expectancy,  rights  of  co-alien- 
ation ("  Beispruchsrecht  "),  rights  of  preemption  ("  Njiher- 
rechte  ")  and  of  option  ("  Vorkaufsrechte  "),  rights  of  escheat, 
and  the  like,  which  limited  the  dispositive  powers  of  the  owner. 
And  though  these  rights  ultimately  became  less  important,  they 
nevertheless  persisted  for  a  long  time,  and  even  to  the  present 
day  in  the  case  of  estates  subject  to  blood  restrictions  ("  gebundene 
Guter  ") ;  developing  even  in  modern  times  some  peculiar  insti- 
tutes, such  as  family  "  fideicommissa."  These  have  also  been 
assured  continued  existence  by  the  Introductory  Act  of  the  new 
Civil  Code. 

(2)  Upon  ihe  exercise  of  the  rights  cf  ownership.  — As  regards 
these,  aside  from  such  general  and  self-evident  rules,  explicitly 
laid  down  in  the  German  (§  226)  as  in  the  Swiss  Civil  Codes, 
as  that  no  right  may  be  exercised  for  purposes  of  chicane, 
special  attention  must  be  given  to  restrictions  imposed  by  rights 
of  vicinage  (infra,  §  37). 

Statutory  restrictions  upon  the  enjoyment  of  ownership  existing 
in  favor  of  private  individuals  have  often  been  called  "  Legal- 
servituten."  The  expression  is,  however,  inexact ;  for  there  is 
not  involved  in  them  any  true  servitude,  notwithstanding  that  they 
ordinarily  have  the  same  content  as  servitudes.  Rights  that  are 
thus  created  in  interested  persons  by  restrictions  upon  the  owner- 
ship of  another,  cannot  properly  be  conceived  of  as  independent 
real  rights  in  the  land  of  the  latter.^ 

§  37.  Restrictions  imposed  by  Rights  of  Vicinage.  —  Limita- 
tions upon  ownership  due  to  the  rights  of  neighbors  have  had 
a  rich  and  varied  development  in  German  law.     Owing  to  their 

1  Gierke,  "Privatrecht",  II,  418. 
262 


Chap.  VI]  THE    LAW   OF   LAND  :     OWNERSHIP  [§  37 

close  connection  with  general  economic  conditions  they  were 
affected  only  to  a  very  slight  extent  by  the  reception  of  the  Roman 
law.  Even  in  the  law  of  the  present  time  the  native  principles 
are  for  the  most  part  preserved.  The  Civil  Code  has  regulated 
in  a  uniform  manner,  and  in  essential  agreement  with  the  earlier 
law,  some  few  restrictions  of  vicinage,  —  the  discharge  of  inhibited 
matter,  buildings  and  other  improvements,  threatened  collapse 
of  land  or  structures,  excavations,  "  over-hang  "  and  "  over-fall  ", 
projecting  buildings,  ways  of  necessity,  and  mutual  rights  in  ques- 
tions of  boundary.  It  has  reserved  further  regulations  to  the 
State  law  (EG,  §  124).  The  Swiss  Civil  Code  has  taken  a 
similar  position. 

The  most  important  restrictions  of  this  class  (for  restrictions 
based  on  vicinage  in  mining  and  in  water  law  cf.  §§40  and  41 
infra)  are  the  following  : 

(I)  Ways  of  Necessity.'^  —  The  obligation  of  a  landowner  to 
afford  his  neighbor  ways  and  passage,  for  agricultural  purposes, 
was  directly  connected  with  the  old  agrarian  system,  the  three- 
field  method  of  cultivation,  and  the  compulsory  regulation  of 
the  mark-arable  that  originated  in  primitive  collective  owner- 
ship. The  old  legal  sources  prescribed  exactly  when  and  for  what 
reasons  the  mark-associates  must  grant  each  other  "  ways  and  by- 
ways." Often  a  duty  of  compensation  was  also  prescribed  ("  wer 
den  Weg  fordert,  soil  ihn  mit  Garben  belegen,"  "  he  who  asks  a 
way  shall  pave  it  with  sheaves  ").  With  the  right  of  way  there 
was  associated  another  limitation,  which  likewise  served  agricul- 
tural purposes.  This  was  the  so-called  "  Pflugwenderecht  " 
("  An  wend  e-  ",  "  Kelir-  ",  "  Tretrecht  ").  It  obhgated  the  owner 
to  permit  his  neighbor  to  swing  his  plow  and  turn  his  ox  upon  the 
other's  land.  The  right  of  enjoying  ways  of  necessity,  which  in 
such  extension  was  unknown  to  the  Roman  law,  persisted  as  com- 
mon customary  law,  was  adopted  by  modern  codes,  and  has  been 
regulated  by  the  new  Civil  Code  (§§  917,  918)  in  accord  with  the 
old  law.  This  "  Tretrecht  "  persisted  in  some  of  the  regional  legal 
systems,  and  still  exists  in  State  law  {e.g.  in  Bavaria  east  of  the 
Rhine).  The  Swiss  Civil  Code  has  fidded  to  ways  of  necessity 
springs  and  conduits  of  necessity  (§§  694,  G91,  710). 

(II)  Likewise  known  only  to  the  regional  legal  systems  was 
the  so-called  "hammer"  or  "ladder"  right  ("Hammerschlags-" 

^  Buck,  "Der  Notweg  im  romisehen  und  alteren  deutsehen  Recht. 
Ein  Beitrag  zur  Lehre  von  den  Notrechten  und  den  Eigentumsbeschran- 
kungen"  (Breslau  Habilitationsschrift,  1909). 

263 


§  37]  THE    LAW    OF    THINGS  [BoOK   II 

"  Leiterrecht  ") ;  namely,  the  right  of  a  neighbor  to  enter  upon 
adjacent  land  or  erect  scaffolding  thereupon  in  order  to  make 
repairs  in  his  own  house.  Ilelated  to  this  was  what  was  known 
as  "  shovel-right  "  ("  Schaufelschlagsrecht  ")  :  the  right  of  the 
possessor  of  a  mill  to  enter  upon  liis  neighbor's  land  through  which 
the  mill  stream  ran,  in  order  to  cleanse  the  waters.  These  rights, 
also,  were  preserved  in  the  particularistic  systems  and  thus  con- 
tinue to  exist. 

(Til)  Rights  of  "  Over-hang  "  and  "  Over-fall."  ^  —  (1)  Rightff 
of  Over-hang  ("  Uberhangsrechte  "). — Wherever  a  tree,  bush,  or 
vine  projects  with  its  branches,  twigs,  or  roots  over  or  into  the 
land  of  a  neighboring  landowner,  there  results  a  conflict  between 
the  right  of  the  owner  of  the  tree  and  the  landowner's  rights  of 
control  over  the  air  above  and  the  earth  below  the  surface  of  his 
land.  The  German  law  has  always  emphasized  primarily  the 
rights  of  the  owner  of  the  tree,  and  has  therefore  given  him  the 
right  not  only  to  fell  the  tree,  but  also  to  cut  off  its  projecting 
branches  in  so  far  as  he  can  do  so  from  his  own  land.^  The  neigh- 
boring landowner,  on  the  other  hand,  did  not  need  to  suffer  such 
encroachment  of  twigs  and  roots' upon  his  close.  In  addition  to 
a  right  of  action  against  the  owner  of  the  tree  for  its  removal, 
he  might,  in  exercise  of  the  right  of  self-help,  cut  off  and  appro- 
priate all  encroaching  twigs  and  roots  found  within  his  close. 
In  this  connection  rules  are  often  given,  in  the  manner  of  primi- 
tive law,  concerning  the  formalities  to  be  observed  in  such  cut- 
ting.^ Many  sources  declared  explicitly,  however,  that  actual 
damage  must  have  been  caused  by  the  over-hang.^  Only  ex- 
ceptionally was  it  required  that  the  landowner  should  first 
demand  of  the  owner  of  the  tree  that  he  remove  its  branches; 
and  likewise  only  exceptionally,  that  the  landowner  should  de- 
liver to  the  owner  of  the  tree  the  wood  so  cut,  or  share  it  with 
him.  The  modern  law,  which  is  here  in  complete  disagreement 
with  the  Roman,  has  retained  these  principles.  The  new  Civil 
Code  has  likewise  adopted  them  (§  910) :  a  landowner  may,  in 
case  of  such  trespasses  by  branches  or  roots,  cut  them  off  and 
keep  them ;  the  branches,  however,  only  after  the  occupant  of 
the  adjoining  land  has  been  required  to  do  so,  and  has  not  removed 

^  A.  B.Schmidt,  "Das  Recht  des  (jberhangs  und  tjberfalls",  no.  21 
(1886)  of  Gierke's  "Untersuchungen." 

2Ssp.,  11,  52,  §  1. 

'"Benkcr  Hcidenrecht"  (a  Westphalian  doom),  Art.  20;  Grimm, 
"Weistumer",   III,  42. 

*  Ssp.,  II,  52,  §  2. 

264 


Chap.  VL]  THE   LAW   OF   LAND  :     OWNERSHIP  [§  37 

them  within  a  definite  period  allowed  him  for  that  purpose.     The 
same  is  provided  by  the  Swiss  Ci\'il  Code  (§  687,  1). 

(2)  Rights  of  Over-fall  ("  tjberfallsrechte  ").  —  German  law 
gave  to  a  landowner  the  right  to  appropriate  the  fruits  that  fell 
upon  his  land  from  over-hanging  branches  projecting  from  an 
adjoining  close.  This  was  known  as  "  Anriss  "  or  "  Abriss  "  (the 
right  of  "  pickings  ").  As  nien  then  said,  "  whatever  falls  in  a 
neighbor's  yard  is  his  " ;  and  even  when  this  was  a  consequence 
of  the  tree-owner's  having  shaken  his  tree,  the  rule  was  the  same.^ 
The  right  was  justified  by  the  argument  that  a  neighbor,  who 
had  suffered  the  damage  of  an  overhanging  branch,  as  for  example 
tlirough  the  shadow  it  had  caused,  should  also  have  the  benefit 
of  it :  "  he  who  drinks  the  bitter  drop  shall  also  taste  the  good." 
In  this  form  the  right  of  "  over-fall  "  passed  into  many  modern 
statutes.  Very  often,  however,  the  landowner  was  given  not  only 
the  right  to  appropriate  fruits  that  had  fallen,  but  also  permission 
to  pick  the  fruit  that  hung  from  the  branches  penetrating  his 
close.  This  was  true  of  the  Saxon  common  law,  and  was  adopted 
by  the  Prussian  "  Landrecht  "  and  the  Austrian  Code.  On  the 
other  hand,  many  legal  systems  prescribed  a  division  of  the  "  pick- 
ings "  between  the  owners  of  the  tree  and  the  land,  —  among 
others  the  French  and  the  Swiss.  The  new  Civil  Code  has  regu- 
lated the  right  of  over-fall  in  agreement,  for  all  practical  purposes, 
with  the  older  German  law,  giving  to  the  neighbor  the  ownership 
of  all  fruits  falling  upon  his  land,  provided  he  has  not  himself 
shaken  the  tree.  But  it  has  at  the  same  time  set  up  the  fiction, 
theretofore  unknown,  that  such  fallen  fruits  shall  be  regarded  as 
the  fruits  of  the  adjoining  land  from  the  moment  of  their  falling 
(§911).  More  simple  is  the  provision  of  the  Swiss  Civil  Code 
(§  687,  2),  according  to  which  a  landowner  who  suffers  the  trespass 
of  branches  upon  lands  cultivated  or  over-built,  has  a  right  to 
the  fruits  ("  Anries  ")  growing  upon  them. 

(IV)  As  respects  the  improvement  of  his  land,  an  owner  was 
subjected  by  German  law  to  manifold  restrictions  in  the  interest 
of  his  neighbors.  The  older  legal  rules  were,  in  part,  later  adopted 
in  police  provisions  of  modern  building  codes.  Under  this  head 
come  the  following  rules : 

(1)  Window  Rights  and  Rights  of  Light.  —  Numerous  German 

legal  systems  forbade  a  landowner  to  open  windows  looking  out 

upon  a  neighbor's  yard,  and  from  which  anything  could  be  thrown 

or  poured  upon  the  same ;  as  likewise  to  shut  off  by  building  the 

1  Gloss  to  the  Ssp.,  II,  52. 

265 


§  37]  THE    LAW    OF   THINGS  [BjOK   II 

access  of  light  to  existing  windows  of  his  neighbor.  Such  pro- 
visions have  frequently  been  adopted  in  modern  statutes  {e.g. 
in  the  Prussian  "  Landrecht  ").  These  retain  their  authority  as 
State  law  alongside  the  new  Civil  Code,  which  itself,  like  the  Roman 
law,  knows  no  such  restrictions. 

(2)  The  j)rovisions  contained  in  many  older  as  well  as  modern 
statutes  forbidding  the  erection  in  the  immediate  neighborhood 
of  a  boundary  of  disagreeable  or  dangerous  structures,  such  as 
privies,  stalls,  dung-i)its,  kilns,  straw-ricks,  bee-hives,  and  the 
like,^  has  been  extended  in  the  new  Civil  Code  to  a  prohibition 
expressed  in  general  terms  (§  907,  1). 

(3)  The  provision,  occasionally  occurring,  forbidding  any  build- 
ing whatever  immediately  at  the  boundary,  was  justified  in  the 
older  sources  by  the  reason  that  no  eaves-trough  might  empty 
upon  a  neighbor's  land.- 

(4)  Many  legal  systems  contain  a  prohibition  against  plant- 
ing trees,  shrubs,  or  hedges,  or  digging  springs,  directly  upon  the 
boundary.  It  was  required  that  the  boundary  be  left  entirely 
clear.  Wherever  structures  or  plantations  exist  upon  or  near 
the  boundary  line,  many  legal  systems  have  assumed  a  community 
ownership,  and  usually  an  undivided  ownership.  The  new  Civil 
Code,  on  the  other  hand,  has  adopted  the  view-point  of  the 
Roman  law  and  declared  (§§  921,  923)  for  a  mere  community 
of  usufruct,  leaving  room,  however,  in  the  case  of  fruit  and  forest 
trees  for  the  provisions  of  State  law  (EG,  §§  122,  183).  Special 
and  exceedingly  varied  rules  formerly  prevailed  relative  to  the 
use  of  party  walls, 

(5)  Encroaching  improvements  ("Grenziiberbau").^  —  As  a  land- 
owner was  bound  to  regulate  his  conduct  within  the  limits  of  his 
own  land  with  regard  to  the  interest  of  his  neighbors,  he  was  all 
the  more  strictly  forbidden  to  cross  the  boundary  with  structures 
or  plantations  ("Anlagen").  His  neighbor  was  not  bound  to 
suffer  a  projecting  building ;  he  could  require  the  removal  of  such 
part  of  the  structure  as  was  erected  upon  his  land  or  projected 
into  the  air  above  it.  Nor  was  encroachment  permitted  even 
where  the  adjoining  land  was  not  subject  to  private  ownership. 
The  prohibition  of  such  buildings  belonged,  therefore,  among 
restrictions  imposed  in  the  interest  of  public  intercourse.  And 
this  was  doubtless  the  point  of  departure  in  the  law's  development. 

>Ssp.,  II,  hi,  §  1.  2Ssp.,  IT,  49,  §  1. 

^Martin  Woljf,  "Dor  Ban  auf  fremdon  Boden,  insbesondero  der 
Grenziiberbau",  in  0.  Fischer's  "Abhandlungen",  VI,  2  (1900). 

2G6 


Chap.  YL]  THE   LAW   OF   LAND  :     OWNERSHIP  [§  37 

For  this  reason  the  burgrave  was  empowered  in  many  cities 
(Strassburg,  Regensburg,  Worms,  and  Cologne)  to  ride  through 
the  streets  with  his  lance  or  staff  of  office  crosswise,  and  to  require 
the  removal  of  all  projecting  structures  that  he  struck  ("  Stan- 
genrecht  ",  "  Recht  der  Raumung  "  ;  —  "  staff-right  ",  "  right  of 
ouster  ")}  Many  town-laws  later  prohibited  the  building  of 
projecting  stories,  so  popular  in  medieval  cities.^  Many  other 
legal  systems  provided,  however,  that  a  neighbor  must  suffer 
a  projecting  building,  once  completed,  if  he  had  not  protested  upon 
receiving  notice  from  its  owner,  or  even  without  such  in  case  of 
notorious  construction ;  he  had  closed  his  own  mouth  by  silence. 
This  principle,  which  was  inconsistent  with  the  Roman  law 
("  superficies  solo  cedit  "),  was  retained  in  the  Territorial  sys- 
tems, and  was  extended  in  some  of  them  (the  Prussian  "  Land- 
recht  "  and  the  law  of  Wiirttemberg)  by  the  further  rule  that  a 
house  owner  who  built  upon  a  boundary  in  good  faith  acquired 
ownership  in  the  surface  of  his  neighbor's  land  so  overbuilt,  sub- 
ject to  compensation  for  its  value.  The  Civil  Code  has  adopted 
this  principle  along  with  a  peculiar  extension  (§§  912-916)  :  the 
owner  of  the  land  built  upon  is  obliged  to  suffer  the  projecting 
portion  of  the  building,  which  remains  in  the  ownership  of  his 
neighbor ;  but  he  receives  from  his  neighbor  in  return  damages 
in  the  form  of  a  money  rent,  which  is  a  charge  upon  his  neighbor's 
land  even  without  registry  in  the  land-book.  Here  again  the 
rule  of  the  Swiss  Civil  Code  is  at  once  simpler  and  in  more  exact 
agreement  with  the  earlier  law  (§  674,  3)  :  whenever  a  projecting 
building  is  erected  without  right,  and  the  injured  party,  notwith- 
standing that  this  ought  to  be  manifest  to  him,  does  not  protest 
in  due  time,  the  real  right  in  the  building  or  the  ownership  of 
the  soil  may  be  assigned  to  the  party  so  overbuilding,  provided 
he  acted  in  good  faith  and  circumstances  otherwise  justify,  in  re- 
turn for  proper  compensation  to  the  other  party. 

1  Rietschel,  "Das  Burggi-afenamt  und  die  hohe  Geriehtsbarkeit  in  den 
deutschen  Bischofstiidten  wahrend  des  friiheren  Mittelalters",  no.  1 
(1905)  of  the  Unter.  G.  D.  Stadtverf.,  331  et  scq.  Cf.  Secligcr,  "Studien  zur 
altercn  Verfassungsgeschichte  Kolns",  K.  Sachs.  Gesell.  Wiss.,  XXVI, 
3  (1909),  109  et  seq.;  Sander,  in  Hist.  Vj.  S.,  XIII  (1910),  77  et  seq. 

2  Goethe,  "Wahrheit  und  Dichtung",  Bk.  1,  Absatz  14  :  "In  Frankfort, 
as  in  many  old  cities,  it  became  customary  in  erecting  wooden  buildings, 
in  order  to  gain  room,  to  take  the  liberty  of  building  out  over  the  street 
not  only  the  first  but  also  the  upper  stories;  the  result  of  which  was  of 
course  to  make  especially  narrow  streets  somewhat  gloomy  and  forbidding. 
Eventually  a  law  was  passed  that  whoever  erected  a  new  house  might 
build  only  the  first  story  out  beyond  the  foundation,  and  that  the  others 
must  be  vertical."     Goethe's  father  found  a  way  to  evade  the  law. 

267 


§  37]  THE    LAW    OF   THINGS  [BoOK   II 

(6)  We  may  class  here  also  the  prohibition  of  "  spite-'  struc- 
tures, already  found  in  many  of  the  medieval  town-laws,  and  which 
is  covered  to-day  by  the  general  prohibition  of  chicanery.  Like- 
wise the  duty,  imposed  upon  the  owner  in  modern  statutes,  of 
preserving  his  buildings  and  his  land  in  such  a  condition  that  no 
damage  shall  result  therefrom  to  his  neighbor,  for  example  by  their 
collapse  or.  by  undue  excavation.  Both  of  these  are  regulated  by 
the  Civil  Code  in  harmony  with  the  earlier  law  (§§  908,  909). 

(V)  The  most  important  practical  restriction  imposed  to-day 
upon  ownership  by  the  rights  of  adjoining  landowners  is  the  obli- 
gation of  an  owner  to  suffer  upon  his  land  what  are  called  "  dis- 
charges ",  that  is,  certain  "  indirect  physical  effects  due  to  the 
discharge  of  matter  or  the  transmission  of  vibrations."  ^  Satis- 
factory rules  relative  to  this  subject  were  unknown  in  the  Roman 
law.  But  the  principle  is  to  be  found  in  some  of  the  medieval 
town-laws,  inasmuch  as  they  designated  certain  industries  as 
"  insufferable ",  which  a  neighbor  was  therefore  not  obliged 
to  put  up  with.  This  view,  which  grew  into  a  definite  customary 
right,  has  been  given  statutory  force  by  the  Ci\'il  Code  (§  906) : 
the  right  —  which  belongs  in  principle  among  the  privileges  of 
ownership  —  of  repelling  all  external  interferences  with  one's 
land,  has  its  limit  wherever  interferences  are  involved  which  are 
either  inappreciable  or  are  produced  by  such  a  use  of  another 
piece  of  land  as  is  usual  with  land  in  similar  situation.  Supple- 
mentary provisions  are  contained  in  the  Industrial  Code  (§  26). 
The  Swiss  Civil  Code  (§  684,  2)  forbids,  for  the  same  reason,  all 
harmful  encroachments  by  smoke  or  soot,  disagreeable  vapors, 
fumes,  or  odors,  noises  or  vibrations,  that  are  not  justified  by  the 
situation  and  nature  of  the  land,  or  by  local  usage. 

§  38.  Restrictions  originating  in  Regalities,  generally.  —  A 
series  of  important  restrictions  upon  landed  ownership  resulted 
from  the  widespread  medieval  institute  of  the  regality.  By  the 
expressions  "  regalia  ",  "  iura  regalia  ",  the  earliest  technical  use 
of  which  is  found  in  the  Concordat  of  Worms  of  1122,  men  desig- 
nated from  the  1100  s  onward  all  those  profitable  rights  of  sover- 
eignty, originating  in  public  or  in  private  law,  which  inhered  in 
the  king  as  the  holder  of  supreme  power,  and  which  permitted 
him  either  to  monopolize  the  administration  ol"  the  law  within 
a  definite  territory  (the  fundamental  meaning),  or  out  of  the  pleni- 
tude of  his  power  to  permit  such  administration  by  others.^     In 

^Gierke,  "Privatrecht",  II.  420. 

2  Fehr,  in  Vj.  Soz.  W.  G.,  VII  (1909),  375. 

268 


Chap.  VI]  THE   LAW   OF  LAND  :     OWNERSHIP  [§  38 

consequence  of  the  patrimonial  conception  of  sovereignty  the 
profitable  character  of  these  rights  was  chiefly  emphasized  ;  that 
is,  their  availability  within  the  rules  of  the  law  of  property 
through  sale,  pledge,  or  lease.  In  this  connection  no  distinc- 
tion was  made  between  rights  of  sovereignty  proper,  —  for 
example  executive  power,  military  power,  and  judicature,  rights 
to  customs  and  of  coinage,  —  and  the  mere  property  rights  of 
the  king  in  lordless  land,  in  things  belonging  to  the  public,  and 
even  in  the  private  property  of  the  subjects,  which  he  had  pos- 
sessed ever  since  he  had  come  to  represent  the  public  interests 
in  place  of  the  organized  folk.  The  possibility  thus  created  of 
alienating  these  rights  in  exchange  for  political  concessions  or 
for  financial  considerations,  was  made  use  of  in  the  most  lavish 
manner  by  German  rulers,  especially  from  the  Hohenstaufen  on- 
ward, to  the  permanent  damage  of  the  cro-VMi's  power.  Thence- 
forth the  regalities,  in  so  far  as  they  were  not  included  in 
the  original  powers  of  the  dukes  of  the  German  racial-branches, 
—  as  was  the  case,  for  example,  with  the  coinage  regality,^  — 
passed  in  increasing  measure  into  the  hands  of  the  Territorial 
rulers,  the  cities,  and  the  manorial  or  feudal  landlords.  All  this 
found  recognition  as  regarded  the  electoral  princes  in  the  funda- 
mental statutes  of  the  Empire,  namely  in  the  Golden  Bull  of 
1356  and,  later,  in  the  electoral  capitulations  and  the  Westphalian 
Peace.  The  movement  was  completed  in  many  cases  not  by 
way  of  law  but  by  way  of  usurpation.  Objects  of  regalities  were, 
above  all,  the  mint,  tolls  and  customs,  markets  and  castles, 
safe  conducts  and  protection  {e.g.  of  merchants,  Jews,  and  for- 
eigners), goods  of  heirless  decedents  and  confiscated  goods,  lord- 
less  estates,  the  sea-shore,  rivers,  roads,  fishing,  the  chase,  forests, 
mines,  salterns,  treasure  trove,  certain  trades,  the  right  of  mili- 
tary ban,  and  rights  of  judicature.  In  Germany  no  general 
definition  of  the  objects  and  matters  subject  to  regalities  was 
ever  made.  This  was  done,  however,  for  Italy  by  the  motley 
catalogue  of  the  Roncaglia  "  constitutio  pacis  "  of  the  emperor 
Frederick  I  of  1158  ;^  and  this,  after  being  embodied  in  the  "  libri 
feudorum  "  (II,  Feud.  56),  became  with  the  Reception  of  the 
Lombard  feudal  law  the  common-law  basis  of  the  theory  of  regali- 
ties in  Germany.  From  the  1700  s  onward  jurists  and  cameralists 
made  numerous  attempts  to  develop  a  theory  of  the  regalities. 

^  Menndier,    "Das    Miinzreeht  des  deutsehen    Stammesherzogs",    in 
Zeitsehrift  fQr  Numismatik,  XXVII  (1909),  158-167. 
2  M.  G.,  Constitutiones,  I,  244. 

269 


§  38]  THE    LAAV    OF    THINGS  [BoOK    il 

Their  chief  endeavor  in  so  doing  was  to  extend  these  as  far  as 
they  possibly  could  (they  got  as  far  as  four  hundred),  seeking 
thereby  to  supi)ort  the  sovereignty  of  the  Territorial  princes,  at 
once  against  the  Emperor  and  the  Empire  and  against  the  estates 
of  their  respective  realms.  A  concej)tional  di\ision  of  the  regalia 
was  also  attempted  between  "  regalia  maiora  ",  that  is  rights  of 
sovereignty  proper,  and  "  regalia  minora  "  which  were  certain 
incidental  financial  rights,  profitable  and  alienable ;  a  distinction 
which,  though  lacking  to  be  sure  in  any  distinct  principle,  never- 
theless became  established  doctrine,  and  as  such  jjassed  over, 
for  example,  into  the  Prussian  "  Landrecht."  Only  when  a 
maturer  insight  had  made  clear  the  ])olitical  character  of  sover- 
eignty, and  the  dissimilarities  between  it  and  privileges  of  private 
law,  did  men  attain  to  any  adequate  limitation  of  the  regality 
concept.  They  then  abandoned  entirely  its  aj^plication  to  polit- 
ical rights  of  sovereignty,  applying  it  thenceforth  solely  to  the 
exclusive  rights  of  the  State  in  the  exercise  of  certain  economic 
activities,  especially  the  exclusive  occupancy  of  certain  objects 
and  the  exclusive  prosecution  of  certain  trades;  rights  which 
persisted  down  into  modern  times  only  in  scanty  number. 

In  this  sense  the  regalities  still  belong  to  the  existing  law  as 
"  profitable  rights  which  by  force  of  a  rule  of  public  law  inhere 
exclusively  in  the  State,  whereas  their  content  is  regarded,  '  in 
se  ',  as  a  privilege  of  private  law."  ^  Aside  from  the  right  of  the 
fisc  to  ownerless  goods  which  is  recognized  by  the  Civil  Code 
(§  928,  2),  and  which  can  be  connected  at  least  historically  with 
the  corresponding  old  regality  (supra,  p.  253),  the  regalities  have 
been  reserved  to  State  law  (EG,  §  73).  In  addition  to  industrial 
regalities  (which  cannot  here  be  considered)  there  still  occur  in 
isolated  cases,  as  so-called  manorial  regalities,  those  of  mines  and 
salterns,  of  the  chase,  fisheries,  amber,  rafting,  ferrying,  and 
milling ;  a  regality  of  treasure  trove  also  still  exists.  As  regards 
roads,  forests,  and  dikes,  however,  the  right  of  the  State  has  been 
weakened  into  the  general  right  of  sovereignty  which  it  enjoys 
over  ever;vi:hing,  whether  or  not  a  regality  be  present.  From  the 
earliest  times  the  most  important  regalities  in  their  relations  to 
landed  ownership  have  been  those  of  woodlands  and  of  hunting, 
of  rivers  and  of  fisheries,  of  roads,  mines,  and  salterns ;  and  this 
remains  true  of  the  law  to-day,  even  in  those  cases  where 
regalities  have  as  such  been  abolished,  being  weakened  into  a 
political  sovereignty  over  forests,  waters,  and  mines.  It  is  therc- 
^  Gierke,  "Privatrecht",  II,  399. 
270 


Chap.  VI]  THE   LAW   OF   LAND  :     OWNERSHIP  [§  39 

fore  advisable,  following  the  example  of  Gierke,  to  discuss  here 
the  law  of  forests  and  hunting,  of  waters  and  fisheries,  and  of 
mining. 

§  39.  Restrictions  originating  in  the  Regalities  of  the  Forest 
Law  and  Hunting  Law.  (I)  The  Forest  Law.  —  The  forests, 
which  at  the  beginning  of  historical  times  and  until  far  into  the 
Middle  Ages  covered  Germany  far  more  thickly  than  at  the  pres- 
ent day,  were  only  gradually  subjected  to  human  control  and 
thereby  converted  into  objects  of  ownership.  Doubtless  only 
small  pieces  of  woodland  were  occupied,  at  first ;  the  great  clear- 
ings which  in  the  course  of  the  Middle  Ages  opened  to  culti- 
vation the  entire  woodland  area  began  only  after  the  end  of 
the  age  of  tribal  migrations.  As  a  result  of  this  original  occupancy 
the  woodland  passed  into  the  collective  ownership  either  of  entire 
racial  branches  ("  Volkswald  ",  folk-wood),  or  of  mark-associa- 
tions ("  Markwald  ",  mark-wood).  Here  again  the  king  took 
the  place  in  the  Frankish  empire  of  the  organized  folk :  the  old 
folk-wood  became  a  royal  forest,  and  the  king,  moreover,  assumed 
the  right  to  appropriate  to  himself,  as  lordless  land,  all  those 
woodlands  which  were  neither  commons  of  mark-associations  nor 
private  property  of  individual  landowners.  Such  woodlands 
were  set  apart  as  forests  ("  forestae  ",  which  is  doubtless  to  be 
derived  from  "  foris  ",  "  foras  ")  by  royal  ban,  the  special  ob- 
ject of  which  was  to  retain  to  the  king  as  an  exclusive  right  the 
chase  in  these  extensive  woodlands.^  Besides  the  ro^^al  forests 
and  the  mark-woodland,  we  find  early  evidences  of  private  wood- 
lands, which  originated  in  clearings  made  by  individual  landowners. 
These  were  greatly  extended  from  the  700  s  onward  by  gifts  of 
royal  forest  of  enormous  areas  to  secular  magnates,  churches,  and 
cloisters,  as  well  as  by  their  sale  and  gage,  later,  to  princes  and 
cities.  In  this  way  the  one-time  wealth  of  forest  standing  in  the 
ownership  of  the  king  or  the  crown  continued  to  shrink,  dowTi  to 
the  1300  s.  The  g^o^^'th  of  mark-woodland  also  contributed  to 
increase  the  private  woodland  of  the  great  landowners  when  the 
rights  originally  enjoyed  therein  by  the  members  of  the  mark 
through  their  collective  ownership  of  the  commimal  woodland  were 
undermined.  This  took  place, partly  because  of  the  general  loosen- 
ing of  the  mark  system,  the  land-lords  settled  within  the  mark 

1  Thimme,  "Forestis.  Konipfsfin^it  und  Konigsreeht  nach  den  Forst- 
urkuAden  vom  6.  bis  12.  Jahrhundert",  in  Arch.  Urk.  F.,  II  (1909), 
101-154.  Compare  u-ith  this  rhlirz  in  Deut.  Litt.  Z.,  1909,  No.  13; 
Philippi,  "  Forst  und  Zehnte",  in  Arch.  Urk.  F.,  II  (1909),  327-334 ;  Baist, 
^'Forestis",  in  Z.  Deut.  Wortf.,  XII  (1910),  235-237. 

271 


§  39]  THE   LAW   OF   THINGS  [BoOK   II 

arrogating  to  themselves  as  over-markmen  the  over-ownership  in 
the  mark-woodland ;  and  partly  because  the  kings,  in  the  exercise 
of  tlioir  right  to  establish  hunting  preserves,  afforested  not  only 
the  royal  and  the  lordless  woodlands  but  also  the  woods,  and  the 
lands  lying  between  them,  of  the  mark-associations  and  private 
individuals.  All  this  was  accelerated  by  the  development  of 
Territorial  sovereignties.  As  the  king  had  made  use  of  his  right 
of  ban  to  the  damage  of  all  others  who  had  woodland  rights,  so 
the  Territorial  princes  now  laid  claim,  within  their  respective 
Territories,  to  the  right  of  afforestation.  Indeed,  from  the  middle 
of  the  1300  s  onward  they  claimed  the  forests  outright  as  their 
projierty,  especially  those  of  the  mark-associations,  so  that  the 
usufructuary  rights  of  the  markmen  thenceforth  appeared  to  be 
mere  servitudes  in  the  property  of  another,  for  which  they  were 
even  commonly  compelled  to  render  tribute.  Only  in  the  case 
of  the  noble  landowners  did  they  proceed  more  considerately. 
Thus,  in  the  interest  of  hunting  privileges  of  manorial  lords  and 
Territorial  princes,  the  peasants  were  crowded  out  of  the  wood- 
land, which  had  once  been  their  property  and  of  the  greatest 
value  to  them.  No  wonder  that  this  produced  a  bitterness  which, 
in  the  words  of  Jacob  Grimm,^  "  has  in  it  something  imprescrip- 
tible "  ;  in  the  Peasants'  War  it  was  one  of  the  chief  complaints. 
From  the  1500  s  onward  men  made  use  of  the  idea  of  regality  in 
order  to  justify  in  legal  theory  the  extensive  rights  claimed  by  the 
Territorial  princes  in  the  woodlands  within  their  States.  The 
consequence  of  this  was  that  there  was  thenceforth  no  necessity 
of  continued  afforestation,  since  the  rights  of  usufruct  and  occu- 
pancy inhered  in  the  Territorial  princes  by  virtue  of  the  regality, 
even  in  the  woodlands  of  noble  owners  and  in  the  few  communal 
woodlands  that  still  existed.  It  is  true  that  their  forest  regality 
was  never  exercised  in  Germany  without  restriction,  because  of 
the  resistance  of  the  estates  of  the  realm ;  but  the  general  right 
of  sovereignty  over  the  forests  that  was  implicit  in  the  regality 
was  used  to  subject  the  entire  administration  of  the  woodland 
to  a  jealous  oversight  on  the  part  of  such  rulers,  and  to  regulate 
them  by  forest  ordinances,  partly  in  the  general  interest  of  for- 
estry, but  sometimes  in  the  interest  of  the  hunting  privileges 
enjoyed  by  the  Territorial  princes.  Such  forest  ordinances  were 
issued  in  especially  great  number  in  South  Germany  (the  oldest 
is  one  of  Wiirttemberg  of  1515).  They  were  the  continuation 
of  products  of  an  older  forest  legislation.  Similar  results  had 
*  "Rechtsaltertiiiner",  I,  346. 
272 


Ch.\p.  \1]  the  law  of  land  :    ownership  [§  39 

already  been  aimed  at  in  some  of  the  folk-laws,  —  for  example, 
the  "  lex  Ribuaria  "  and  "  lex  Baiuwariorum  ",  —  in  occasional 
provisions  of  imperial  statutes,  and  especially,  later,  in  manorial 
enactments  {e.g.  a  forest  ordinance  of  Maursmiinster  of  1184, 
and  a  doom  of  1383  concerning  the  forest  preserves  of  Dreieich). 
Especially  after  the  havoc  wrought  by  the  Thirty  Years'  War 
the  forest  statutes  of  the  different  States  assumed  as  a  special 
task  the  improvement  of  forestry;  but  the  limitations  imposed 
by  them,  in  harmony  with  the  tutelary  character  of  the  State's 
activity  in  that  age,  were  often  of  such  extent  that  the  owners 
hardly  remained  masters  of  their  woodlands.  Thus,  for  example, 
the  Prussian  "  Landrecht "  (I,  8,  §§  83  et  seq.)  threatened  the  owners 
of  private  woodland  with  penalties  for  waste,  and  compelled  them 
to  observe  the  instructions  of  the  State  police  as  respected  restric- 
tions upon  cutting. 

These  ideas  were  abandoned  in  more  modern  times,  following 
the  example  set  by  France.  The  oversight  of  the  State  over 
private  woodlands  was  greatly  lessened  or  entirely  done  away 
with;  the  latter  was  the  case,  notably,  in  Prussia  (edict  of  Sep- 
tember 14,  1811).  However,  here  as  in  other  departments  of 
government  a  reaction  set  in  against  the  individualistic  view  which 
regarded  the  woodland  simply  as  an  object  of  private  law.  In 
Prussia  the  freedom  of  private  woodlands  was,  in  general,  main- 
tained ;  whereas  in  other  States,  for  example  in  Baden  and  Hesse, 
the  consent  of  the  State  was  made  requisite  for  the  clearing  even 
of  private  woodland.  On  the  other  hand,  in  Prussia  also  the 
woodlands  of  communes  {e.g.  the  "  hewing-"  hills  in  Siegen)  and 
of  public  institutions  were  subjected  by  a  statute  of  August  14, 
1876,  to  a  certain,  although  not  a  stringent,  State  oversight ;  and 
likewise,  by  statute  of  March  14,  1881,  community  woodlands, 
the  partition  of  these  being  restricted  at  the  same  time. 
The  oversight  of  the  State  under  the  Prussian  law  is  intended 
merely  to  insure  such  exploitation  of  the  woodland  as  will  not  en- 
danger its  permanence,  but  in  some  States  such  oversight  extends 
further,  in  that  any  plan  for  their  exploitation  must  be  approved 
by  State  officials  {e.g.  in  Bavaria),  or  else  the  actual  administra- 
tion of  communal  woodlands  is  entrusted  to  governmental  over- 
foresters  (as  in  Baden  and  Hesse).  Finally,  the  Prussian  statute 
of  July  6,  1875,  although  it  has  thus  far  proved  of  but  slight 
practical  importance,  introduced  greater  restrictions  (for  which 
compensation  was  given)  in  the  case  of  what  are  known  as 
"  Schutzwaldungen  "  ("  protected  woodlands  "  :  those  whose  con- 

273 


§  39]  THE    LAW    OF   THINGS  [BoOK   II 

servation  is  regarded  as  especially  necessary  to  society),  — similar 
provisions  exist  in  Bavaria,  Wurttemberg,  Brunswick,  and  Alsace- 
Lorraine  ;  and  at  the  same  time  authorized  the  compulsory 
establishment  of  forest-associations,  —  which  provision  has  like- 
wise been  imitated  in  some  other  States,  as  e.g.  in  Brunswick. 
The  Introductory  Act  of  the  New  Civil  Code  gives  effect  to  these 
laws  (§  So).  The  Swiss  Civil  Code  has  applied  the  idea  of  com- 
pulsory community  as  a  general  principle.  Under  conditions  which 
it  indicates  in  detail,  it  permits  (§  703)  a  majority  of  landowners 
to  compel  cooi)eration  by  the  minority  in  common  undertakings 
for  the  good  of  the  woodland  which  could  not  be  accomplished 
without  such  cooperation.  Such  compulsory  communities  may 
be  formed  not  only  for  purposes  of  afforestation  but  also  for  the 
correction  of  the  course  of  streams,  drainage  and  sewage,  the 
opening  of  roads,  and  consolidation  of  holdings. 

(II)  The  Hunting  Law.^  —  The  right  to  hunt  was  most  inti- 
mately associated  in  Germany  from  the  earliest  times  with  the 
ownership  of  land.-  Wlierever  private  ownership  was  developed, 
the  landowner  had  the  exclusive  right  of  hunting  over  the  land 
he  owned.  Where  the  woodlands  were  the  collective  property 
of  mark-associations,  only  the  mark-associates  had  the  right  to 
hunt  over  the  common  mark  and  to  appropriate  the  wild  game 
(right  of  "  freie  Piirsch  ").  In  time  the  right  of  hunting  became 
dissociated  from  the  ownership  of  land :  there  was  developed  a 
right  of  hunting  upon  the  land  of  others. 

The  earliest  cause  of  this  result  was  the  creation  by  the  Prank- 
ish kings  of  forest  reservations  by  royal  ban  ("  Bannforsten  ", 
supra,  p.  271).  They  not  only  afforested  the  woodlands  that  were 
lordless,  and  those  they  owned  themselves,  —  thereby  penaliz- 
ing poaching  in  such  hunting  preserves  with  the  punishments 
of  the  royal  ban,  which  were  more  severe  than  the  penalties  of 
the  popular  law,  —  but  also  extended  their  forest  laws  and  game 
ordinances  over  woodlands  that  constituted  portions  of  common 
marks,  and  even  over  such  as  were  objects  of  private  ownership. 
In  this  manner  they  abolished  within  such  districts  the  hunting 
privileges  theretofore  enjoyed  by  mark-associates  and  individual 

'  V.  Briinneck,  Art.  ".Jagdreeht"  in  H.  W.  B.  der  Staatsw.,  V  (3d  ed., 
1910),  .504  cl  scq.;  Frnmmhobl,  "Cher  das  .lafjdroclit",  in  Ihcrittg's  J.  B., 
LIII  (190.S),  lSH-212;  Ehner,  "Die  Grundhofrrin'o  des  Jagdrechts",  in 
Beit.  z.  KrlJlut.  D.  R.,  LV  (1911),  .535-57"),  737-7.50. 

^  R.  Schroder,  "Lohrbuch"  (5th  od.),  547,  and  Tliimmc,  op.  at.,  110, 
are  of  the  contrary  opinion,  namely  that  the  hunting  law  originated  in  the 
right  of  appropriating  wild  animals. 

274 


Chap.  \1]  THE   LAW   OF  LAXD  :     OWXERSHIP  [§  39 

landowners,  reserving  these  either  for  themselves  or  for  those  eccle- 
siastical and  secular  magnates  to  whom  they  granted  exclusive 
privileges  of  the  chase.  How  sharply  opposed  this  withdrawal 
of  hunting  privileges  was  to  the  inrooted  popular  consciousness 
of  right  is  seen  in  the  fact  that  even  in  the  Sachsenspiegel  the 
memory  of  free  hunting  rights  is  still  alive.^ 

But  even  outside  of  the  royal  forests  hunting  rights  were  ulti- 
timately  segregated  from  the  ownership  of  land.  This  was  a  conse- 
quence of  the  increasing  organization  of  the  folk  in  occupational 
estates,  and  of  the  idea,  which  in  consequence  came  to  be  gener- 
ally predominant,  that  the  chase  was  an  occupation  fit  only  for 
persons  of  a  knightly  mode  of  life,  the  higher  clergy  being  re- 
garded in  this  connection  as  the  equals  of  the  nobles.  It  is  true 
that  the  cities,  —  particularly  the  imperial  cities,  —  and  their 
burghers  often  retained  unlimited  rights  of  hunting  in  the  woods 
belonging  to  the  city  mark,  or  at  least  a  limited  right  of  hunting. 
On  the  other  hand,  as  respects  the  peasants  such  rights  were 
everywhere  either  wholly  denied  them  or  materially  limited,  and 
this  as  regarded  both  the  common  marks  and  lands  that  were  the 
private  property  of  peasants.  They  were,  for  example,  permitted 
only  the  rights  to  hunt  ignoble  ("  niedere  ")  game,  or  to  hunt 
only  upon  condition  that  they  use  upon  their  own  tables  the 
game  which  they  should  kill,  and  not  for  sale,  etc.  Finally,  in 
the  1400  s  and  1500  s  their  right  of  hunting,  in  so  far  as  they  still 
enjoyed  any,  was  everywhere  taken  from  them  by  ordinances  of 
the  ruling  princes,  upon  economic  grounds  or  for  purposes  of 
rural  police. 

From  the  1400  s  onward  the  hunting  rights  of  landowners  were 
still  further  limited,  those  of  noble  landowners  as  well  as  others, 
by  the  claims  which  the  Territorial  rulers  asserted  to  a  hunting 
regality  throughout  the  entire  extent  of  their  domains,  just  as 
they  had  previously  laid  claim  to  a  forest  regality  {supra,  p.  272). 
The  right  formerly  granted  them  by  the  kings  to  set  apart  forest 
preserves  they  now  extended  beyond  such  reserves,  usurping  the 
right  to  forbid  to  other  persons  the  right  of  hunting  anywhere 
in  their  domains ;  that  is  to  say,  as  a  general  rule,  granting  such 
rights  only  by  way  of  special  privileges.  ^Maximilian  I,  for  ex- 
ample, a  passionate  and  reckless  hunter,  did  not  shrink  from  using 
any  means  to  acquire  the  exclusive  privilege  of  chase  in  his  earldom 
of  Tyrol,  as  the  Territorial  lord.  As  may  readily  be  understood, 
he  was  thereby  plunged  into  violent  conflict  with  all  others  who 
iSsp.,  II,  61,  §  1. 
275 


§  30]  THE    LAW    OF   THINGS  [BoOK   II 

held  similar  privileges.  In  other  regions,  also,  resistance  was 
made  to  these  efforts  of  the  Territorial  rulers.  The  estates  of  the 
realm  succeeded  in  establishing  the  rule  that  the  regality  in  ques- 
tion (which  in  some  Territories,  as  e.g.  ^lecklenhurg,  was  wholly 
unknown)  should  be  recognized,  in  general,  only  as  regarded 
noble  game,  —  that  is,  stags  and  wild  boars  ;  whereas  "  ignoble  " 
game  (hares,  partridges,  and  roes)  or  "  ignoble  "  and  "  ordinary  " 
game  (roes)  were  reserved  to  the  nobles  and  the  clerg.w  On  the 
other  hand,  the  Prussian  "  Landrecht  ",  which  extended  through- 
out the  kingdom  the  Slavic-Polish  law  of  Silesia,  did  establish 
a  general  regality,  permitting  the  exercise  of  no  hunting  rights 
whatever  except  under  licenses  granted  by  the  Territorial  ruler. 
Not  only  where  a  regality  was  lacking,  but  equally  where  such 
existed,  manorial  lords  continued  to  enjoy  hunting  privileges 
upon  the  estates  of  their  dependent  peasants,  frequently  in  the 
form  of  a  servitude  associated  with  the  demesne  which  secured 
to  the  lord  of  the  manor  either  an  exclusive  or  only  a  so-called 
"common"  right  of  hunting  ("  ]\Iitjagdsrecht  ").  Again,  such 
rights  might  be  enjoyed  by  several  persons  in  the  same  way 
and  in  like  measure;  that  is,  as  though  by  ideal  shares 
("  Koppeljagd  ").  It  was  only  infrequently  that  vestiges  of 
the  old  rights  of  mark-associations  persisted,  in  the  form  of 
hunting  rights  enjoyed  by  the  inhabitants  of  a  city  throughout 
the  municii)al  domain,  or  by  villagers  over  the  communal  fields 
("freiePiirsch"). 

Even  under  this  form  of  the  hunting  law,  the  rights  of  chase 
permitted  over  the  land  of  others,  hunting  services  ("  Jagdfron- 
den  "),  and  the  damage  caused  to  the  fields  by  immoderate  stock- 
ing of  the  preserves,  were  a  sore  oppression  to  the  rural  popula- 
tion. The  law  was  done  away  with  in  Germany  begimiing  about 
the  middle  of  the  1800  s.  Here  again  France  had  led  the  way 
with  such  legislation.  In  accord  with  the  principles  laid  down 
in  the  Fundamental  Rights  of  1848,  every  riglit  of  hunting  upon 
the  land  of  others,  and  likewise  the  right  of  pursuit  onto  the  land 
of  others  were  everywhere  finally  abolished  by  legislation  in  the 
different  States;  in  Prussia  and  in  Bavaria  without,  and  in  the 
other  States  in  return  for,  compensation.  Only  in  Mecklenburg 
does  the  manorial  right  of  hunting  uj)on  the  land  of  others  still 
exist  to  any  great  extent.  In  the  same  way  the  regality  of  hunt- 
ing was  entirely  done  away  with ;  but  the  supreme  control  of  the 
State  over  hunting  ("  Jagdhoheit  ")  was  reserved,  and  thus  it 
is  able  to  fix  closed  seasons  for  the  protection  of  game,  and 

276 


Ch.\P.   Yl]  THE    LAW    OF   LAND  :     OWNERSHIP  [§  39 

prescribe  the  manner  in  which  hunting  rights  shall  be  exercised. 
As  to  this  last,  the  rights  of  landowners  upon  their  own  estates 
were  in  many  States  (for  example  Prussia  and  Bavaria)  originally 
left  entirely  unrestricted,  which  was  going  further  in  this  respect 
than  the  Frankfort  Fundamental  Rights.  This  rule,  however, 
soon  proved  to  be  very  harmful  both  politically  and  economically ; 
and  in  consequence  there  has  come  about  in  such  States  since 
1850  a  change  in  legislation :  the  Prussian  hunting  law  ("  Jagd- 
polizeigesetz  ")  of  March  7th,  1850,  and  most  recently  the  hunt- 
ing ordinance  ("  Jagdordnung  ")  of  July  15th,  1907 ;  the  Bavarian 
statute  of  June  15th,  1850;  and  similar  statutes  in  Baden,  Sax- 
ony,.  Hannover,  Wiirttemberg,  and  other  States.  The  principle 
was  adopted  that  the  right  of  hunting  must  be  inseparably  united 
with  the  ownership  of  land,  —  which  was  a  return  to  the  starting- 
point  of  the  law's  historical  development;  but  the  exercise  of 
hunting  rights  was  made  dependent  upon  certain  qualifications, 
some  -personal,  others  of  landownership.  As  regards  the  first, 
the  procuring  of  a  hunting  license  was  required,  and  its  issuance 
can  be  denied  to  such  persons  as  it  is  feared  may  abuse  it.  As 
regards  the  latter,  only  those  landowners  whose  estates  amounted 
to  a  certain  area  were  permitted  to  exercise  the  hunting  rights  to 
which  they  would,  as  landowners,  be  "  prima  facie  "  entitled. 
This  amount  is  in  Prussia  approximately  three  hundred  acres 
("  Morgen  "),  —  according  to  the  Hunting  Ordinance  of  1907 
such  a  private  hunting  district  must  have  an  area  of  at  least 
seventy-five  hectares;  in  Bavaria  it  is  two  hundred  and  forty 
"  Tagewerke  "  (land  that  affords  a  day's  labor)  in  the  lowlands, 
and  four  hundred  in  the  highlands.  All  other  lands  are  included 
in  community  hunting-districts,  within  which  the  exercise  of 
hunting  rights  belongs  to  a  "  hunting  association  "  constituted 
of  the  owners  of  the  lands  so  united.  This,  however,  is  repre- 
sented in  most  States  by  the  political  commune,  or  by  its  official 
organ  the  communal  administrative  board,  which  exercises  hunt- 
ing rights  in  the  name  and  for  the  account  of  the  associated 
landowners.  Under  the  Prussian  Hunting  Ordinance  of  1907  a 
"  hunting  director  "  has  charge  of  the  administration  of  the 
association,  and  this  director  is  the  president  of  the  commune. 
In  some  States  (Bavaria,  Wiirttemberg,  Alsace-Lorraine)  the 
right  to  hunt  is  always  required  to  be  exercised  through  lessees ; 
other  statutes  (as  those  of  Prussia  and  Saxony)  leave  it  to  the 
individual's  choice  whether  the  game  shall  be  disposed  of  by 
lease,  or  shot  by  official  huntsmen,  or  left  undisturbed.     In  the 

277 


§  39]  THE    LAW    OF   THINGS  [BoOK   II 

case  of  leases  a  definite  maximum  number  of  lessees  is  prescribed 
(in  Prussia  ordinarily  not  more  than  three).  These  rules  have 
also  done  away  with  the  right  of  "  freie  Tiirsch  "  :  the  com- 
munes must  likewise  either  lease  their  hunting  rights  or  exercise 
them  through  an  official  huntsman.  The  old  distinction  between 
noble  and  ignoble  game  has  also  disappeared ;  the  right  of  hunt- 
ing now  extends  indifferently  to  all  animals  that  are  allowed  to 
be  hunted  at  all.  Which  these  shall  be  is  determined  by  State 
legislation,  ordinarily  after  an  exhaustive  enumeration ;  this  is 
the  case  in  Prussia  (under  the  Game  Protection  Act  of  July  14th, 
1904,  and  now  by  the  Hunting  Ordinance  of  1907),  Bavaria,  and 
Saxony. 

The  hunting  law  has  been  reserved,  generally  speaking,  to  the 
States  (EG,  §  G9).  It  is  only  as  regards  damage  done  by  wild 
game  that  the  Civil  Code  has  laid  down  certain  rules  (§  835)  which 
are  a  development  of  the  earlier  Prussian  Game  Protection  Act 
of  1891.  This  imperial  ordinance,  however,  "  is  of  little  impor- 
tance, as  compared  with  the  State  hunting  laws",^  the  Introduc- 
tory Act  of  the  Code  having  left  undistur})ed  the  existing  rules 
of  State  legislation  (§§  70,  71,  72)  and  authorized  the  issuance  of 
new  ones.  The  Prussian  hunting  ordinance  of  1907,  for  example, 
regulates  exhaustively  the  subjects  of  compensation  for  damages 
done  by  wild  game  and  pre\'ention  of  such  damages.  Such 
provisions  were  unknown  to  the  older  law.  Only  after  the  full 
development  of  the  hunting  regality  were  any  great  number  of 
them  issued ;  and  from  that  time  on  their  sphere  of  application 
was  materially  restricted,  inasmuch  as  the  right  of  hunting  was 
permitted  (in  principle)  to  all  landowners.  Since  that  time  an 
obligation  to  pay  damages  has  existed,  generally  speaking,  only 
in  the  case  of  lessees  of  hunting  rights  as  against  landholders 
not  entitled  to  those  rights.  The  Civil  Code  fixes  a  uniform 
minimum  measure  of  compensation  in  such  cases.  It  also  j)re- 
scribes  which  animals  shall  be  compensated  for  by  damages,  — 
wild  boars,  red  deer,  damine  buck,  roe  deer,  and  pheasants;  but 
not  hares.  Nevertheless,  these  as  well  as  other  animals  are 
subject  to  State  legislation  determining  what  damage  shall  be 
compensated  for,  who  is  entitled  to  damages,  and  who  shall 
pay  them  —  as  to  the  last,  the  person  entitled  to  the  hunting 
privileges,  in  case  the  landowner  has  not  himself  the  right  to 
hunt. 

'  Dcrnhurg,  "Das  biirgcrlicho  Reeht,  des  deutsehen  Reichs  und  Preus- 
sens",  II,  2,  §  397. 

278 


Chap.  Vl]  THE   LAW   OF  LAND  :     OWNERSHIP  [§  40 

§  40.  Restrictions  Originating  in  Regalities  of  the  Law  of 
Waters,  Fishery,  and  Dikes.  (I)  The  Law  of  Waters.^ — (1)  Tlie 
Older  Germanic  Law.  —  German  law  has  always  given  particular 
attention  to  the  fact  that  inland  waters  are  not  so  well  fitted  to 
serve  private  needs  as  they  are  to  serve  needs  that  are  primarily 
those  of  the  public.  The  land  that  was  permanently  covered  with 
water  was,  like  the  forests,  originally  subject  to  the  collective 
ownership  of  the  folk ;  and  all  waters,  in  so  far  as  they  were  cap- 
able of  utilization,  were  subject  to  the  common  user  of  all  members 
of  the  folk.  The  permanent  assignment  of  definite  districts 
among  the  smaller  groups  of  the  mark-associations,  and  the 
appearance  of  private  ownership  of  land,  resulted  in  a  variant 
legal  treatment  of  different  waters.  In  this  connection  their 
size  was  of  fundamental  importance. 

(A)  Larger  waters,  navigable  by  ships  and  serving  commerce 
between  land  and  land,  so-called  public  rivers  ("  flumina 
publica  "),  remained,  like  the  military  roads  of  the  land  ("  vise 
publicffi  "),  the  property  of  the  whole  community,  and  therefore 
subject  to  everybody's  use.  But  in  this  case,  as  with  the  forests, 
the  old  ownership  of  the  folk  was  displaced  by  that  of  the  king  as 
the  representative  of  the  folk,  that  is  of  the  Empire.  Thenceforth 
the  great  arteries  of  trade,  alike  of  water  and  of  land,  were  called 
roads  of  the  king  or  the  Empire.  For  a  long  time,  however,  the 
old  popular  view  persisted  that  they  had  not  therefore  ceased  to 
be  objects  of  common  user :  this  still  found  sharp  expression  in 
the  Law  Books.-  But  the  kings  early  put  forward  another  claim. 
From  the  rule  that  the  greater  waters  were  royal,^  they  deduced 
the  right  personally  to  dispose  of  the  profits  therein.  They,  too, 
were  "  afforested  "  by  them  ;  though  here  they  were  of  course  not 
interested,  as  in  the  case  of  game,  in  excluding  other  persons  from 
the  usufruct,  but  only  in  a  fiscal  exploitation  thereof  by  grants  to 
such  persons.    There  thus  resulted  a  regality  of  public  waters. 

1  Geffcken,  "Zur  Geschichte  des  deutschen  Wasserrechts  ",  Z'-.  R.G., 
xxi  (1900),  .173-217  ;  Peterka,  "  Das  Wassorrecht  der  Weistiimer  "  (190.")) ; 
Astrom,  "  tjber  das  Wasserrecht  in  Nord-  und  Mitteleuropa "  (1905); 
Kloess,  "  Das  deutsehe  Wasserrecht  und  das  Wasserrecht  der  Biiiides- 
staaten  des  deutschen  Keichcs "  (1908);  Stocrk  —  E.  Loening.  article 
"  Gewasser  "  in  H.  W.  B.  der  Staatsw.,  IV  (3d  (>d.,  1909) ,  836-847  ;  Kloess, 
"  Die  Rechtsstelhing  dvr  Quelle  und  des  Grundwassers  nach  deutschem 
Recht",  in  Beit.  z.  Erliiut.  D.R.,  LIV  (1910),  296-313  ;  Moll,  "  Zur  Lehre 
von  d(>n  ofTentlichen  Sachen",  in  same,  313-354  ;  Fischel,  "  Zur  Reform  des 
Wasserrechts"  (1911). 

2  Ssp.  II.  29,  §  4 ;  "  Landrecht  "  of  Gorlitz,  34,  §  1. 

^  Thus,  Ludwif?  the  Pious  declared  in  a  document  of  816 :  "  Siquidem 
cujuscumque  potestatis  sint  littora,  nostra  tanien  est  regalis  aqua." 

279 


§  40]  THE    LAW    OF   THINGS  [BoOK   II 

The  "  stream  regality  "  ("  Stromregal  ")  included  the  right  to 
impose  taxes  upon  every  private  use  of  reserved  ("  gebannten  ") 
waters  by  vessels  of  whatever  kind,  as  well  as  by  harbor  struc- 
tures, ferries,  bridges,  mills,  etc.  Of  course,  the  kings  could 
grant  freedom  from  such  taxes.^  Inasmuch  as  the  bed  of  such 
streams  was  the  ])ro})erty  of  the  Empire,  islands  that  were  built 
up  within  them  fell  to  the  Empire  or  to  subjects  endowed,  as  its 
grantees,  with  supreme  rights  over  the  stream,  as  was  decided  by 
an  imperial  doom  of  1294.-  As  this  same  doom  shows,  rights  of 
safe-conduct  and  of  towing,  and  particularly  rights  of  judicature 
over  the  stream,  were  also  included  in  the  regality.  This  did  not 
belong  to  the  Territorial  rulers  who  controlled  the  banks,  but  was 
independently  disposed  of  by  the  Empire."^ 

This  regality  over  streams  remained  longer  than  other  regali- 
ties in  the  control  of  the  Empire.  It  was  only  from  the  second  half 
of  the  1300  s  onward  that  the  power  of  the  Territorial  rulers  came 
more  and  more  to  control  the  rivers  at  the  expense  of  the  Empire. 
At  the  same  time  sporadic  applications  of  the  crown's  regality 
are  to  be  found  down  to  the  end  of  the  1400  s. 

(B)  Smaller  waters  within  individual  marks,  so-called  pri- 
vate WATERS  ("  aqupe  aquarumque  decursus  "),  which  were 
not  supposed  to  serve  any  larger  purposes  of  intercourse  but 
merely  the  necessities  of  neighbors,  usually  passed,  like  roads  and 
byways  ("  viae  convicinales  "),  as  parts  of  the  mark  commonties, 
into  the  ownership  of  mark-associations,  by  which  they  were 
administered,  remaining  free  to  the  use  and  profit  of  the  mark- 
associates  alone;  whereas  waters  upon  lands  not  yet  under  culti- 
vation were  subject,  as  lordless  domains,  to  the  king's  right  of 
appropriation.  With  the  appearance  of  private  ownership 
in  land,  many  waters  fell  immediately  into  the  exclusive  owner- 
ship of  individual  landowners.  This  was  true  of  springs,  brooks, 
and  ponds,  as  well  as  of  water  diverted  by  canals ;  such  cases, 
however,  were  of  slight  importance  both  in  law  and  in  fact.  On 
the  other  hand,  the  king  soon  came  to  exercise  his  rights  of  reserva- 

1  Thus,  for  example,  Frederick  I  declared  the  Rhine  a  "libera  et 
regia  strata",  the  Main  a  "via  regia"  free  of  customs  dues. 

2  "Curia  Xorimhergcnsis",  an.  1294,  c.  1  CM.  G.,  Constitutiones,  III, 
487). 

'  For  e.xample  Frederick  I  gave  Liibeck  in  1188  jurisdiction  over  the 
Trave  from  Oldosloo  to  the  sea;  in  1890  the  Imperial  Court,  acting  as 
an  arbitral  court  in  a  suit  ]>etween  Liibeck  and  Mecklenburg  brought 
before  the  Bundesrat,  confirmed  Liibeck's  sovereign  rights  over  the  lower 
Trave  on  the  strength  of  this  grant,  thereby  settling  definitely  a  dispute 
centuries  old.  Schroder,  "Landeshoheitiiber  die  Trave",  in  "  Neuelleidel- 
berger  Jahrbucher",  I  (1891),  10  et  scq. 

280 


Ch-.P.   VI]  THE    LAW    OF   LAXD  :     OWNERSHIP  [§40 

tion  ("  Bannrechte  ")  over  the  waters  of  the  mark  commonties 
as  he  had  earHer  done  over  their  woodlands.  He  thus  withdrew 
their  usufruct  from  the  pubHc,  and  either  reserved  this  to  himself 
or  conveyed  it  to  ecclesiastical  and  secular  magnates  to  whom  he 
made  gifts  of  lands.  These  magnates  acquired  in  this  way  the 
same  exclusive  private  ownership  over  such  waters  as  they  had 
already  gained  over  the  woodlands.  ^Moreover,  wherever  and 
however  manors  were  constituted  there  eventuated  private 
ownership.  At  the  same  time,  as  many  dooms  show,  by  no 
means  every  kind  of  user  of  such  waters  was  reserved  to  the 
landowner  alone,  even  in  manors  and  manorial  marks ;  the  de- 
pendent markmen  might  also  draw  water,  bathe,  water  animals, 
and  often  also  fish  therein.  As  contrasted  with  mark-communes 
that  had  remained  free,  the  only  difference  was  that  the  land-lord, 
like  the  king,  was  in  a  position  to  reserve  rights  of  ban,  especially 
the  right  to  lay  taxes,  and  also  to  reserve  to  himself,  in  such  meas- 
ure as  he  pleased,  particular  rights  of  usufruct.  However,  with 
the  decline  of  the  free  marks  and  with  the  growing  economic 
supremacy  which  landed  magnates  (as  chief  markmen,  or  other- 
wise) were  acquiring  therein,  the  difference  between  free  and  un- 
free  marks  almost  disappeared,  in  respect  to  water  rights  the  same 
as  in  other  matters.  Not  only  that,  but  the  free  associates  of  the 
mark  were  often  enough  actually  no  longer  in  a  position  to  utilize 
the  waters  otherwise  than  for  ordinary  fishing ;  they  were  obliged, 
if  only  because  of  economic  conditions,  to  abandon  all  other  modes 
of  usufruct  to  the  lord  of  the  manor.  This  condition  of  affairs 
received  legal  recognition,  and  led  to  a  right  of  ban  over  pri^'ate 
waters  on  the  part  of  manorial  lords  and  Territorial  rulers  that 
corresponded  to  the  stream  regalitj'  of  the  crown.  Thus  the 
Middle  Ages  ended  with  the  law  in  a  condition  that  was  the  very 
opposite  of  the  originally  unrestricted  right  of  public  user. 
Had  an  undisturbed  development  of  the  law  been  possible, 
there  might  perhaps  have  been  gradually  evolved  from  the 
regality  of  the  Territorial  princes  a  regulation  of  water  rights 
which  should  once  more  have  given  heed  to  public  interests,  and 
thereby  increased  authority  to  the  old  Germanic  idea  that  water 
is  a  common  property-  of  the  folk.  Such  a  result,  howe^•er,  was 
made  impossible  by  the  Reception. 

(2)  The  Modern.  Law  of  ]]'afcrs.  —  The  Roman  law  of  waters, 
which  was  adapted  to  the  peculiar  geographical  and  economit 
conditions  of  IMediterranean  lands,  could  not  be  accepted  un- 
changed   in    Germany.     But    many  principles    were  borrowed 

281 


§  40]  THE    LAW    OF   THINGS  [Book   II 

from  it  that  were  inconsistent  with  the  native  law,  ])artic- 
uhirly  the  distinction,  which  was  totally  different  in  the 
Ronuui  and  German  law,  between  pnblic  and  private  rivers. 
The  consequence  of  this  was  an  extremely  incoherent  and  patchy 
restatement  of  the  modern  law  of  waters,  which  proved  increasingly 
incapable  of  satisfying  the  greatly  increased  necessities  of  water 
traffic  that  were  created  by  modern  industry.  The  law  of  waters 
is  another  branch  of  the  law  which  is  not  regulated  by  the  Civil 
Code,  but  is  reserved  to  State  legislation  (EG,  §  65).  It  is 
thus  that  authority  has  been  retained  by  the  modern  statutes 
which  have  been  issued  in  almost  all  the  States.  Neverthe- 
less, it  cannot  be  said  that  legal  uniformity  has  been  realized  even 
within  the  individual  States.  In  Prussia,  especially,  there  does 
not  exist  in  a  single  part  of  the  law  of  waters,  down  to  the  present 
day,  legislation  entirely  uniform  for  the  whole  kingdom.  Bavaria, 
Saxony,  Baden,  Hesse,  and  other  States,  are  better  situated  in 
this  respect.  A  draft  of  a  general  law  of  waters  was,  however, 
presented  to  the  Prussian  Diet  in  December,  1911,  and  has  a  pros- 
pect of  realization.^  The  most  important  statutes  to  be  consid- 
ered in  this  connection  are :  the  Prussian  law  of  February  28th, 
1843,  regulating  the  use  of  private  rivers,  and  that  of  April  1st, 
1879,  concerning  "  stream  associations  " ;  the  Bavarian  Water 
Act  of  ]\Iay  28th,  1852,  which  has  recently  been  displaced  by 
the  Act  of  March  23rd,  1907 ;  the  Saxon  statute  of  August 
15th,  1855,  supplanted  by  that  of  IMarch  12th,  1909;  the  Wiirt- 
temberg  statute  of  December  1st,  1900;  the  Baden  statute  of 
June  26th,  1899 ;  and  the  statute  of  Alsace-Lorraine  of  July  2nd, 
1891. 

(A)  Public  rivers  under  the  Roman  law  were  streams 
that  were  never  dry ;  in  other  words,  constantly  flowing 
streams.  This  conception,  inapplicable  to  German  latitudes, 
was  replaced  in  the  common  law,  in  accord  with  the  older  German 
law,  by  the  category'  of  "  navigable  "  rivers,  —  i.e.  navigable  by 
ships  or  rafts  ("  schiff- und  flossbar ").  But  even  these  fall 
within  the  category  of  public  rivers  only  in  so  far  as  they  are 
navigable,  whereas  the  Roncalian  Constitution  counted  also  among 
them  "  flumina  ex  quibus  fiunt  navigabilia." 

For  the  most  part  the  principle  has  been  recognized  that  owner- 
ship in  a  public  river  (that  is  in  the  bed  covered  by  it,  since  the 

^  Iloltz,  "Die  Ncuordnunf?  des  Wasserrechts  in  Preussen",  in  "Vor- 
trage  und  Schriften  zur  Fortbildung  des  Ilechts  und  der  Juristen",  V 
(1912). 

282 


Chap.  YL]  THE   LAW   OF   LAND  :     OWNERSHIP  [§  40 

flowing  water,  which  is  "  res  nullius  ",  cannot  be  the  object  of 
rights)  belongs  to  the  State.  This  is  the  rule  of  the  Prussian 
"  Landrecht  "/  and  of  the  Austrian,  Saxon,  Bavarian,  and  French 
systems.  On  the  other  hand,  according  to  other  legal  systems, 
and  notably  the  common  law,  a  public  river  is  regarded  as  owner- 
less, a  "  res  communis  omnium  "  ;  and  a  mere  right  of  sovereignty 
therein  is  attributed  to  the  State,  corresponding  to  the  old 
regality.  The  question  was  a  much  disputed  one  in  the  common 
law.  Where  ownership  is  in  the  State,  islands  that  form 
within  the  stream  naturally  belong  to  it  as  provided  by  an  im- 
perial doom  of  1294  :  the  Prussian  "  Landrecht  "  stands  alone  in 
refusing  to  draw  this  logical  consequence  of  State  ownership. 
However,  the  difference  between  the  two  theories  is  not  important 
either  theoretically  or  practically.  For,  as  on  one  hand  an  ex- 
tensive public  user  of  public  rivers  exists  even  where  the  State  is 
the  owner,  so  on  the  other  hand  a  river  is  not  given  over  to  unre- 
stricted public  user  even  where  it  is  regarded  as  a  "  res  communis 
omnium  ",  the  public  user  being  restricted  in  many  respects  in  the 
interest  of  the  State.  While  unlimited  public  user  exists  as  re- 
gards certain  uses  and  profits,  —  such  as  drav/ing  water,  bathing, 
watering  animals,  swimming,  and  the  gathering  of  ice,  often  also 
the  removal  of  stones,  gravel,  and  shingle,  —  these  being  allowed 
to  everybody  without  question,  others,  such  as  navigation  and 
rafting,  are  subject  to  the  observance  of  restrictions  imposed  by 
police  statutes  of  the  State,  or  else  to  the  payment  of  taxes 
imposed  by  the  State  by  virtue  of  its  sovereign  rights,  as 
is  the  case  with  fishing  rights  under  State  regulations.  Finally, 
particular  species  of  usufruct,  more  extensive  than  ordinary 
rights  of  public  user,  may  be  granted  by  the  State  to  indi- 
viduals upon  their  petition,  notwithstanding  that  the  public  user 
is  thereby  restricted  in  favor  of  such  grantees.  These  species 
of  usufruct  still  constitute  in  many  places  the  objects  of  special 
regalities.  So,  for  example,  there  still  remains  a  logging  regality 
as  respects  unrafted  logs,  a  regality  of  ferriage,  a  regality  of  milling, 
in  certain  regions  also  an  amber  regality  (in  Pomerania  and  West 
Prussia  as  regards  amber  found  on  the  seashore  and  in  the  sea, 
in  East  Prussia  also  as  regards  that  found  on  the  land) .  Similar 
special  licenses  by  the  State  are  also  commonly  required,  in  the 

1  Allg.  L.  R.,  14,  §  21 :  "Public  and  military  roads,  streams  navigable 
by  nature,  the  sea  shore,  and  harbors,  are  common  property  of  the  State." 
True,  the  effect  of  the  expression  "common  property"  ("gemeines  Eigen- 
tum  ")  is  disputed;  the  Reichgericht  has  declared  against  State  ownership. 

283 


§  -iO]  THE   LAW   OF   THINGS  [Book   II 

interest  of  public  user,  for  the  erection  of  permanent  irrigation 
works  upon  adjacent  lands,  conduits,  hydraulic  works,  baths,  and 
the  like. 

(B)  In  the  case  of  private  rivers  the  Roman  law  attrib- 
uted unrestricted  private  ownership  to  adjacent  landowners. 
This  principle,  however,  was  applied  only  to  such  streams  as  were 
dry  at  times  in  the  summer,  so  that  it  scarcely  invoh'cd  any  damage 
to  the  public  interests.  In  Germany,  on  the  other  hand,  the 
principle  was  maintained  that  private  rivers  include  all  those  that 
are  not  navigable  either  for  vessels  or  for  rafts.  Even  when  men 
had  become  willing  to  discard  the  restrictions  based  on  the  power 
of  manorial  lords  and  Territorial  rulers,  it  was  impossible  to  apply 
to  such  streams  the  principles  of  the  Roman  law  (principles, 
moreover,  which  were  in  part  much  controverted)  and  treat 
them  like  other  objects  of  private  ownership.  On  the  contrary 
it  was  always  recognized,  and  in  many  of  the  more  modern  Terri- 
torial statutes  was  expressly  declared,  that  such  streams  should 
also  serve  the  public,  albeit  in  another  and  more  limited  manner 
than  public  rivers.  The  only  waters  to  which  this  principle  was 
held  inapplicable  were  those  surrounded  by  land  individually 
owned,  such  as  ponds,  lakes  without  outlet,  springs,  brooks,  cis- 
terns, and  the  like.  And  even  as  regards  many  waters  privately 
owned,  such  as  medicinal  springs  and  drinking  waters,  a  special 
public  protection  and  official  oversight  have  been  introduced  into 
modern  legislation,  in  order  to  maintain  their  output  for  the  com- 
mon good  of  the  State  (cf.  the  Prussian  "  Quellenschutzgesetz  " 
of  May  14th,  1908).  This  idea  underlies  the  exliaustive  regu- 
lation of  the  law  of  springs  in  the  Swiss  Civil  Code  (§§  704- 
712).^  In  view  of  such  provisions  adopted  in  the  public  interest,  it 
may  be  said  that  all  streams  are  public,  under  the  present  as  under 
the  older  German  law,  but  some  are  such  in  a  greater  degree  than 
others.-  As  a  matter  of  fact,  at  least  one  German  State,  namely 
Baden,  has  followed  this  view,  which  excellently  expresses 
the  law's  historical  development  and  satisfies  modern  necessities, 
to  its  logical  consequences.  In  its  excellent  Water  Act  of  1899, 
all  natural  waters  are  declared  to  be  public  property ;  those  which 
are  navigable  for  ships  and  rafts  being  the  property  of  the  State, 
and  others  the  property  of  the  communes,  l^he  same  is  true  of 
Austria,  of  most  of  the  Swiss  cantons,  and  of  Italy.    On  the  other 

^  Fleiner,  "  Institutionen  des  deutschen  Verwaltungsrechts "  (1911), 
300. 

^  Cosack,  in  Gerber's  "System"  (17th  ed.),  90. 

284 


Chap.  \I]  the  LAW  OF  laxd  :    ownership  [§  40 

hand,  all  waters  are  regarded  as  private  property  in  Norway  and 
in  Finland.  In  other  Germanic  States  the  rule  of  the  Roman  and 
the  common  law  has  for  the  most  part  been  accepted  and  main- 
tained :  namely,  that  the  riparian  landowners  along  private 
rivers  are  owners  thereof  to  the  thread  of  the  stream,  and  there- 
fore also  of  islands  newly  formed  therein.  It  is  only  in  the  law 
of  the  provinces  on  the  French  side  of  the  Rhine  and  in  the 
Saxon  law  that  even  private  rivers  are  regarded  as  ownerless. 

The  private  ownership  of  riparian  landholders,  however,  se- 
cures them  no  exclusive  rights  of  usufruct.  On  the  contrary 
certain  kinds  of  user  are  open  to  everyone's  enjoyment,  even  in 
the  case  of  private  streams  ;  this  is  true  of  bathing,  washing,  draw- 
ing water,  watering  animals,  and  at  times  also  of  boating  and  the 
gathering  of  ice.  Of  course,  the  riparian  owners  enjoy,  in  respect 
to  such  common  user,  a  natural  monopoly,  for  they  do  not  need 
to  allow  third  persons  access  to  the  shores  of  which  they  are  the 
owners.  The  common  user  of  the  stream  by  those  who  are  not 
riparian  landholders  is  therefore  practicable  only  where  a  public 
road  adjoins  the  river.  Moreover,  the  freedom  of  user  inher- 
ing in  riparian  owners,  as  such,  is  also  subjected  to  restrictions 
imposed  by  the  State  in  the  interest  of  the  public  and  of  other 
riparian  owners.  It  is  an  accepted  principle  that  such  owners 
shall  use  their  rights  moderately  or  normally  ("  pfleglich  ") ;  the 
statutes  contain  numerous  detailed  provisions  upon  this  subject. 
Thus,  for  example,  each  adjacent  landholder  is  authorized  to  use 
half  of  the  water  flowing  by  his  land,  but  it  is  made  his  duty  to 
cause  no  back  water,  flood,  or  marshy  overflow ;  he  must  return 
to  the  river-bed  water  which  he  diverts  therefrom ;  he  must  not 
permit  the  entry  into  the  river  of  certain  harmful  substances,  — 
on  which  subject  the  principles  of  the  Civil  Code  (§  906)  must 
now  control  in  cases  otherwise  doubtful ;  he  may  not  rob  lower 
riparian  owners  by  diverting  water  in  excessive  amount  for  im- 
provements, but  must  leave  them  the  full  flow  to  which  they  are 
entitled ;  he  must  also  permit  them  to  make  use  in  certain  ways 
of  the  banks,  as  e.g.  for  tovv'-paths ;  and  he  must  maintain  the  bank 
in  proper  condition  ;  and  so  on. 

In  view  of  these  very  diverse  rights  of  usufruct,  which  may 
easily  give  rise  to  disputes,  many  modern  statutes  have  provided 
for  the  organization  of  so-called  "  stream-associations  "  ("  Was- 
sergenossenschaften  "),  in  which  all  interested  landowners  are 
united  and  compelled  to  submit  to  resolutions  of  the  majority. 
Particularly  influential  in  this  field  was  the  Prussian  act  of  April 

285 


§  40]  THE    LAW    OF   THINGS  [BoOK   II 

1st,  1879,  which  was  based  upon  French  models ;  there  are  similar 
statutes  in  Hesse  (1899),  Baden  (1899),  Wiirttomberg  (1900), 
Bavaria  (1907),  and  Saxony  (1909).^  These  stream-associations, 
which  connect  historically  with  associations  for  the  watering  of 
meadows  that  existed  under  the  older  law,  are  either  constituted 
by  voluntary  contract,  —  this  class  alone  being  recognized  to-day 
in  the  French  and  Prussian  law,  —  or,  like  all  those  of  the  Bavarian, 
Saxon,  and  Baden  law,  are  "  public  ",  that  is,  com])ulsorily  or- 
ganized at  the  instance  of  the  public  authorities.  All  are  "  real  " 
("  Real  "),  rather  than  personal,  associations.  The  public  class 
unite  in  themselves  "  the  qualities  of  corporate  associations  of  the 
pubUc  law  and  those  of  juristic  persons  of  the  private  law  ",  while 
in  the  voluntary  class  the  former  character  is  lacking. 

(II)  The  Law  of  Fisheries.^  (1)  TJw  Older  Law.—\Ne  have 
remarked  under  (I)  .supra  that  the  starting  point  of  the  German 
law  of  fisheries  was  the  principle  that  the  right  to  fish  belonged  to 
every  member  of  the  folk,  as  regarded  the  greater  streams  and 
lakes,  and  to  every  markman  as  regarded  the  water-commons  of 
the  mark-associations.  Fishing  in  the  open  sea,  of  which  nothing 
more  need  here  be  said,  has  always  been  free,  and  is  so  to-day. 
When  a  "  stream  "-regality  had  developed  in  navigable  waters, 
the  rights  of  fishery  in  these,  as  "  banwaters  ",  also  became  a 
regality  of  the  crown.  The  king  could  either  exercise  them  him- 
self or  convey  them  to  the  Territorial  princes  ;  in  later  times  they 
were  generally  regarded  as  regalities  of  the  Territorial  rulers,  and 
in  many  cases  were  conveyed  by  them  to  manors,  cloisters,  com- 
munes, mills,  etc.,  in  return  for  rents  or  services.  By  the  accept- 
ance of  the  Roncalian  Constitution  this  view  was  very  considerably 
strengthened.  At  the  same  time  the  old  principle  of  free  fishery 
was  maintained  intact  in  the  case  of  public  waters.^ 

As  regards  the  water-commons  of  mark-associations,  the  right  of 
free  fishery  was  maintained  much  longer  than  that  of  free  hunting, 

*  Anschiitz,  art.  "  Wassergenossenschaften"  in  the  H.  W.  B.  der  Staatsw., 
VIII  (3d  ed.,  1911),  615-G27;  G.  Sehling,  "Die  preussischen  Wasser- 
genossenschaften,  zugleieh  ein  Beitrag  zur  Lehre  von  den  offentlifhen 
Genossensehaften",  no.  28  (1912)  of  Brie  and  Fleischinatui's  "Abliand- 
lungen." 

^  Stoflel,  "Die  Fischereiverhaltnisse  des  Bodensees",  No.  13  (1900) 
of  Gmiir's  "  Abhandlungen"  ;  Zollinger,  " Das  Wasserrecht  der  Langeten", 
No.  17  (190())  of  the  same  series;  Winiker,  "Die  Fischereirechte  am  Vier- 
waldstattersee".  No.  24  (1908)  of  the  same. 

'Compare  the  passages  from  the  Ssj).  and  the  Gfirlitzer  "Landroolit" 
cited  on  p.  279,  suprn.  Also,  for  example,  the  franchise  granted  to  Parcliim 
in  1225  by  Prince  Heinrich  Borwin :  "  pisseatio  per  omnem  provinciam 
communis  et  libera  est  cum  sportis  et  hamis  et  retibus,  exceptis  soli 
sagenis." 

286 


Ch.\P.  VI]  THE    LAW   OF   LAND  :     OWNERSHIP  [§  40 

since  the  princes  and  manorial  lords  attributed  much  less  value 
to  fisheries  than  to  the  chase.  But  in  the  case  of  fisheries,  also, 
legal  distinctions  were  nevertheless  introduced,  —  based  upon  the 
different  classes  of  fish  or  the  mode  of  their  capture,  —  which 
corresponded  to  the  distinction  between  noble  and  ignoble  game. 

Fishing  in  ponds,  lakes,  and  in  other  closed  waters  of  private 
ownership  was  always  regarded  as  an  exclusively  private  privilege.^ 

(2)  The  Modern  Law.  —  As  a  consequence  of  the  reception 
of  the  Roman  law  the  law  of  fishery  in  public  waters  was  not 
altered,  since  it  made  no  practical  difference  whether  fishing 
rights  in  these  should  continue  to  be  regarded  as  a  regality  or  as 
"  property  "  of  the  State.  In  either  case,  private  individuals 
desirous  of  exercising  rights  of  fishery  in  such  waters  were  obliged 
to  have  a  special  governmental  license.  Wherever  free  ("  wilde  ") 
fishery  continued  to  exist,  —  as  for  example  in  the  French  law, 
which  assured  to  everyone  the  right  of  line  fishing  in  smaller  streams 
and  public  rivers,  or  (as  respects  other  modes  of  fishing)  in  special 
districts  or  particular  rivers,  —  it  was  abolished  by  more  modern 
fishing  laws  (as  e.g.  by  the  Prussian  Act  of  May  30th,  1874),  and 
conferred  in  most  cases  upon  the  communes. 

As  regards  fishery  in  private  waters  the  principle  has  become 
established  in  modern  State  legislation  that  it  exists  in  favor  of 
riparian  landholders ;  and  therefore  to  the  thread  of  the  stream 
when  the  two  shores  belong  to  different  persons.  Every  person 
who  exercises  fishing  rights  must  observe  in  so  doing  the  police 
regulations  prescribed  by  the  State  ;  under  many  statutes  he  must 
also,  as  in  Prussia,  give  notice  to  the  administrative  board  that 
oversees  the  fisheries,  and  procure  from  it  a  license,  which  he  must 
always  carry  with  him  when  fishing.  If  the  independent  exer- 
cise of  fishing  rights  by  riparian  landholders  appears  to  be  detri- 
mental to  an  economical  utilization  of  the  waters,  the  State  may 
prescribe,  as  in  Prussia,  the  organization  of  "  fishery  associations  " 
("  Fischereigenossenschaften  "). 

The  extent  of  "fishing"  rights  has  been  variously  defined. 
Usually  the  right  to  take  clams  and  other  aquatic  products  is 
unrestricted ;  but  pearl  fishing  is  in  various  States  (Bavaria, 
Saxony)  a  regality. 

(Ill)  The  Law  of  Dikes." — The  law  must  not  only  provide  for 
the  apportionment  of  usufructuary  rights  in  waters,  but  also  for 

1  Ssp.,  II,  28,  §  1,  2. 

"J.  Gierke,  "Geschichte  des  deutschen  Deichrechts",  I  (1901);  An- 
schiitz,  art.  "Deichwesen",  im  H.  W.  B.  der  Staatsw.,  Ill  (3d  ed.,  1909), 

287 


§  401  THE    LAW    OF   THINGS  [BoOK   II 

guarding  the  land  against  dangers  with  which  they  may  threaten 
it.  Their  user  is  for  the  profit  of  the  pubHe,  and  therefore  all 
persons  interested  therein  should  contribute  to  the  charges  neces- 
sary for  their  assurance  against  such  dangers.  Even  in  early 
times  German  law  gave  expression  to  this  idea  in  its  regulations 
of  dikes.  Forces  tending  toward  associational  organization  found 
here  a  fruitful  field  of  action.  The  dikes  along  the  sea  coast 
and  in  the  lowlands  of  the  greater  rivers  were  originally  con- 
structed by  voluntary  colonizing  associations  ("Siedelungsgenossen- 
schaften  ")  as  a  preliminary  to  the  original  settlement  of  marshy 
districts,  and  later  by  communes,  after  the  settlement  of  the  diked 
land  thus  created,  for  the  better  security  of  their  economic  inter- 
ests. From  the  end  of  the  Carolingian  period  onward,  particu- 
larly in  the  1100  s  and  1200  s,  there  appeared,  in  addition  to  the 
old  communal  dikes  built  by  associations  ("  genossenschaftliche 
Gemeindedeichungen  "),  others  constructed  by  ecclesiastical  and 
secular  lords,  churches,  cloisters,  and  cities,  usually  in  connection 
with  great  colonizing  enterprises,  and  upon  the  basis  of  land  grants 
given  for  enclosure.  But  dikes  continued  to  be  erected  by  in- 
dividual "  dike-lords  "  ("  Deichbauherren  "),  or  by  free  peasant 
communes,  or  by  "  dike-unions  "  ("  Deichverbande  "),  that  had 
nothing  to  do  with  such  colonial  settlements. 

While  the  oldest  dike  associations  were  those  of  communes, 
either  free  or  manorial,  -—  that  is,  of  associations  that  coincided 
with  communes,  —  this  was  not  true  of  the  "  dike-unions  ",  in 
the  narrower  sense,  that  were  later  most  common.  Such  associa- 
tions originated,  for  example,  when  settlements  were  made  upon 
lands  outside  existing  dikes,  and  the  old  communes  united  with 
the  new  in  the  erection  of  a  new  dike,  without  any  political  fusion 
of  the  old  and  the  new  communes;  or  when  a  redistribution  of 
charges  was  undertaken  within  the  dike  association  of  an  existing 
commune,  and  these  were  laid  upon  some  only,  and  not  upon  all, 
of  the  landowners.  The  medieval  dike  unions  ("  Deichverbande  ", 
"  Deichachtcn  ",  "  Koogen  ")  were  originally  associations  ("  Ge- 
nossenchaften  ")  in  the  sense  of  the  older  German  law  but  they 
frequently  developed  at  an  early  date  into  corporate  associations 
("  Korperschaften  "),  and  at  times  assumed  the  form  of  communi- 
ties of  collective  hand.     They  may  be  characterized  as  "  autono- 

402-J81 ;  ./.  Cicrke,  "Chrenecruda  und  Spatonreoht",  in  7?  R.  G.,  XXVITI 
(1907),  29Q-:i41;  "Die  Versputiinp:",  in  "Festschrift  fur  H.  Brunner" 
(1010),  77.5-805;  "Das  Roezeinreeht  (Busenreeht)",  in  "Festschrift  fiir 
O.  (Jierke"  (1911),  1090-11,37;  Ilcrmcs  {Ifnltz),  art.  "Deichwesen"  in 
V.  Slcngcl-Fleischmann's  "Worterbuch",  I  (2d  ed.,  1911),  550-554. 

288 


Ch.AJ.   VL]  the    law    of   LAXD  :     OWNERSHIP  [§  40 

mous  compulsory  associations  of  public  law,  with  a  territorial 
basis."  ^  In  their  fully  developed  form  they  were  "  special  " 
communes,  communal  unions  that  existed  for  the  particular  pur- 
pose of  dike  regulation.  They  were  compulsory  associations, 
because  no  person  settled  within  the  dike  could  free  himself  from 
the  burden  of  its  construction  or  maintenance  ("  Deichlast  "). 
This  burden,  however,  rested  as  a  public  real  charge  upon  the 
lands  involved,  — "  kein  Deich  ohne  Land,  kein  Land  ohne 
Deich  " :  no  dike  without  land,  no  land  without  dike.  It  was 
cu3tomary  to  assign  to  every  associate  or  more  exactly  to  every 
piece  of  land,  a  section  of  the  common  dike  ("  Pfand  ",  "  Kabel  ", 
"  Los  ")  for  maintenance  ("  Pfanddeichung  ").  Only  extraordi- 
nary burdens  were  charged  upon  all  the  members  jointly  ("  Kom- 
muniondeichung  ").  Whoever  failed  to  discharge  his  duties  in 
respect  to  the  dike  thereby  renounced  the  ownership  of  his  land. 
This  was  the  "  Spatenrecht  "  ("  spade-law  ")  in  the  "  objective  " 
sense :  the  dike  overseer  responsible  for  the  execution  of  the  work 
sank  his  spade  into  the  section  of  the  dike  assigned  to  the  unwill- 
ing or  incapable  associate,  —  "  wer  nicht  will  deichen,  muss  wei- 
chen,"  "  who  will  not  dike  must  give  way  to  another."  On  the 
other  hand,  a  person  unable  to  maintain  his  assignment  could 
voluntarily  renounce  both  land  and  dike,  and  in  this  manner 
withdraw  from  the  dike  association.  This  was  "  Spatenrecht  " 
in  the  "  subjective  "  sense :  he  himself  sank  the  spade  into  the 
dike  in  a  particularly  prescribed  manner  reminiscent  of  the  old 
Salic  Chrencruda. 

The  organ  of  the  dike  association  as  such  was  a  general  assem- 
bly of  the  members.  Its  administrative  business  was  conducted 
by  special  dike  officials  known  as  "  dikegraves  ",  who  were  aided 
by  special  judges,  juries,  and  subordinate  officials. 

After  the  close  of  the  Middle  Ages  the  organization  of  the  dikes 
was  fundamentally  altered.  The  dike  associations  fell  under  the 
police  power  and  oversight  of  the  Territorial  rulers  and  their 
administrative  boards,  which  gradually  claimed  a  right  to  regu- 
late and  oversee  them  and  to  name  their  officials.  In  this  manner 
the  dike  associations  lost  their  autonomy,  and  their  legal  status  as 
juristic  persons  under  the  private  law ;  the  ownership  of  the  dikes 
themselves  was  attributed  to  the  State,  and  later  there  was  also 
attributed  to  it  a  special  dike  regality.  Thus,  in  the  course  of 
the  IGOO  s  and  1700  s,  the  dike  associations  were  transformed  from 
self-governing  bodies  into  State  institutions  ("  Staatsanstalten  ") 
*  Anschiitz,  article  just  cited,  463. 
289 


§  40]  THE    LAW    OF   THINGS  [BooK    II 

for  tlie  apportionment  of  maintenance  charges  ("  Lastenvertei- 
lungssozietiiten  ")} 

In  the  ISOOs  there  became  manifest  a  reversal  of  tendencies  that 
could  be  called  a  "  regeneration  of  the  associational  idea."  ^  This 
found  particular  expression  in  the  Prussian  Dike  Acts  of  Janu- 
ary 2Sth,  1848,  and  April  11th,  1872.  As  a  result  of  this  change 
the  care  of  the  dikes  has  again  been  entrusted  to  self-governing 
dike  unions,  subject  of  course  to  public  statutes,  and  under  the 
oversight  of  the  State ;  the  details  of  such  associations  being  regu- 
lated by  State  statutes  of  a  common  type. 

In  other  German  States  also  (Hesse,  Oldenburg,  Anhalt,  Bre- 
men, Hamburg)  statutes  exist  regulating  the  dike  administration. 
Where  this  is  not  the  case,  those  general  rules  of  law  apj^ly  which 
regulate  protection  against  flood  ("  Wasserschutz  "). 

Closely  associated  with  the  dikes  there  frequently  existed 
from  the  earliest  times,  drains  and  sluices;  their  maintenance 
was  charged  upon  an  association  of  the  landholders  whose  land 
they  drained.  Such  associations  ("  Sielachten "),  which  were 
particularly  numerous  along  the  North  Sea,  occurred,  and  still 
occur,  in  connection  with  dike  associations,  but  also  independ- 
ently. They  are  always  regulated  similarly  to  the  dike  associa- 
tions, and  in  their  case  also  the  duty  of  maintenance  rests  upon 
the  lands  included  in  the   union. 

§  41.  Restrictions  originating  in  Regalities  of  the  Law  of  Mines 
and  Salterns.  (I)  Mining  Law.'^  (1)  History.  (A)  Thk  min- 
ing REGALITY.  —  The  right  of  mining  was  originally  included,  like 

^  Anschutz,  article  just  cited,  466.  ^  [hid.,  467. 

^  Achenbach,  "Das  gemeine  deutsche  Ber^cclit",  I  (1871);  Arndt, 
"Zur  Gesehiehte  und  Theorie  des  Ber{?repals  iind  der  Berg-baufreiheit" 
(1879);  Ermisch,  "Das  siiehsischo  Bergrecht  des  Mittelalters"  (1887); 
Opel,  "Das  (lewerkschaftsrecht  nach  den  deutschen  Bergrechtsquellen 
des  Mittelalters",  in  Z.  Bergr.,  XXXIV  (180.3),  218  it  scq.:  Zijchn,  "Das 
Recht  des  jiltesten  deutschen  Berghaus"  (1899) ;  "Das  bohmische  Berg- 
recht  des  Mittelalters  auf  Grundlage  des  liergreohts  von  Iglau"  (2  vols., 
1900);  Bernhard,  "Die  Entstehung  und  Entwicklung  der  dedingeord- 
nungen  im  deutschen  Bergrecht",  XX,  7  (1902)  of  Schmollcr's  "ForscJiun- 
gen";  Arndt,  "Noch  einmal  der  Sachsenspiegel  luid  das  Bergregal",  iu 
Z2.  R.  G.,  XXIII  (1902),  112-122;  "Einigo  Bemorkiingon  zur  (ieschichte 
des  Bergregals",  same,  XXIV  (1903),  .'")9-l  10 ;  Ztjcha,  "tyi)er  den  Ur- 
sprung  der  deutschen  Bergbaufrciheit  und  deren  Verhiiltnis  zum  Regal", 
in  same,  .338-347;  Arndt,  "Zur  Frago  des  Bergregals,  Eine  R(>plik", 
in  same,  46.5-47.') ;  Schling,  "  Die  Rechtsverli;iltniss(>  an  den  der  Verfiigung 
des  Grundeigentiimers  niclit  entzogenen  Minerali(Mr'  (1904);  Zycha, 
"Zur  neuosten  Literatur  iiber  die  Wirtschafts-  und  Rechtsgeschichtc  des 
deutschen  Bergbaus",  Vj.  Soz.  W.  G.,  V  (1907),  238-292,  VI  (1908),  85- 
133;  "t)ber  die  Geltung  des  Berg-  und  Salzregals  in  McH-klcnburg, 
Gutachten  den  Grosshcrzoglichen  MinistiTien  der  Justiz  und  des  Inneren 
erstattet  von  der  .Juristen-Fakultiit  der  Universitiit  Rostock",  in  Meckl.  Z. 
Rp.  Rw.,  XXVI  (1908),  16.5-191;    Wcsthoff,  "Gesehiehte  des  deutschen 

290 


Chap.   VI]  THE    LAW    OF   LAND  :     OWNERSHIP  l§  41 

the  other  rights  we  have  considered  above,  in  the  private  owner- 
ship of  land,  although  in  periods  of  primitive  culture  landowners 
were  as  yet  incapable  of  utilizing  this  privilege.  The  mark- 
associations  did  not  devote  themselves  to  mining,  nor  is  there  any 
evidence  of  small  free-landowners  w4io  devoted  themselves  to  such 
enterprises.  On  the  contrary,  after  the  destruction  during  the 
age  of  the  migrations  of  the  mines  that  dated  from  the  Roman 
period,  the  conditions  necessary  for  such  undertakings  were  first 
realized,  to  any  considerable  extent,  under  the  manorial  adminis- 
tration, and  by  the  union  of  stronger  economic  forces  which  it 
made  possible.  At  the  end  of  the  Carolingian  period  and  in  the 
centuries  following,  exploitation  began  of  the  great  mining  dis- 
tricts in  the  Alps  (in  Tyrol,  Salzburg,  and  Switzerland),  in  Swabia 
and  Franconia,  in  Bohemia,  in  the  Harz  mountains,  in  Saxony, 
and  in  Silesia ;  and  all  these  mines  passed  into  the  ownership, 
either  of  the  royal  treasury,  or  of  ecclesiastical  and  secular  land- 
lords. In  this  oldest  period  none  but  purely  private  enterprises 
existed.  The  metals,  and  therefore  also  their  extraction,  were 
regarded  as  appurtenances  of  landed  ownership,  like  the  ordinary 
usufruct  of  the  soil  for  agricultural  purposes ;  the  landlord  merely 
paid  a  rent  in  metal  (a  tithe)  to  the  king,  and  this  royalty  might 
be  in  turn  alienated  by  the  crown.  We  are  probably  justified  in 
regarding  this  tribute  as  historically  connected  with  the  mining 
tax  of  the  Roman  law,  which,  —  in  accord,  on  this  point,  with  the 
original  Germanic  view,  —  recognized  no  other  holder  of  mining 
privileges  than  the  landowner,  and  no  other  fiscal  right  of  the 
crown  in  the  mine  than  the  tithe. 

In  the  1000  s  and  1100  s,  however,  there  was  developed  out  of 
this  bare  right  of  tribute,  —  which  might  be  designated  as  the  first 
and  oldest  form  in  the  evolution  of  the  mining  regality,  —  a  prac- 
tice of  the  crown  of  conveying  mining  rights  to  landowners,  whicli 
practice  was  justified  by  the  king's  claim  of  title  to  particular 
minerals.  This  was  the  second  form  of  the  mining  regality. 
Thenceforth  mineral  deposits  were  classed  as  "  iuris  imperii  ",  in 
the  sense  that  their  enjoyment  was  dependent  upon  the  consent 
of  the  crown.  This  consent,  however,  was  given  only  to  him  who 
could  formerly  have  exercised  mining  privileges  without  it :    the 

Bergreehts",  ed.  by  Schliiter,  in  Z.  Bergr.,  L  (1909);  27  et  scq.,  230  ct 
scq.,  357  et  seq.,  492  et  seq.,  LI  (1910) ;  93  et  seq.,  217  et  seq.;  Zycha,  rat. 
"Bergbau",  "Bergbauteehnik  iind  Betriebsgeschichte",  "Bergreeht", 
in  Hoop's  "Reallexikon",  1  (1912),  248-2.54,  25G-259 ;  Silberschmidt, 
"Die  Entwickhmg  der  Gewerkschaft",  in  Z.  Hnls.  R.,  LXXI  (3d  ser., 
XII,  1912),  193-26G. 

291 


§41]  THE    LAW    OF   THINGS  [BoOK    II 

landowner.^  In  this  way  there  was  developed  for  the  first  time  a 
regahty  in  the  strict  sense.  As  Zycha  remarks,  the  main  cause  of 
this  change  may  have  been  the  fact  tliat  the  land-lords  early  en- 
deavored to  free  themselves  from  the  payment  of  the  mining 
tithe,  and  for  this  purpose  turned  to  the  crown,  which,  in  the 
privileges  it  granted  them,  assured  them  the  entire  produce  of  the 
mines,  including  the  tithes.  There  resulted  from  this  an  idea  that 
the  king  had  full  power  to  disj)ose  of  unmined  metals;  an  idea 
which  it  was  also  attempted  to  support  by  citations  from  Roman 
legal  sources.  Like  other  regalities,  that  of  mining  soon  passed 
into  the  hands  of  the  Territorial  princes,  who  thenceforth  conveyed 
to  landholders  the  right  of  mining  upon  land  they  owned  or  held 
as  tenants,  just  as  the  king  had  formerly  granted  them  these  rights 
directly.  L  i)on  their  own  domains,  the  Territorial  rulers  some- 
times prosecuted  mining  on  their  own  account. 

In  the  hands  of  the  Territorial  rulers  the  mining  regality  received 
in  the  course  of  the  1200  s  a  great  extension  of  content,  thereb}' 
entering  its  third  stage  of  development.  It  was  now  transformed 
from  a  right  to  the  substance  of  all  precious  metals  into  a  general 
right  of  sovereignty  over  the  mming  industry,  which  was  sub- 
jected to  public  regulation  as  respected  the  mode  of  exploitation, 
its  legal  basis,  and  its  product.  The  mining  industry  thus  became 
actually  separated  from  the  ownership  of  land,  after  having  already 
become  legally  dissociated  therefrom  in  consequence  of  the 
requirement  of  the  issuance  of  mining  licenses  by  the  lord  who 
held  the  regality.  JNIineral  deposits  were  thenceforth  granted  to 
their  discoverer  to  this  extent,  that  the  Territorial  rulers  permitted 
anyone  to  open  and  exploit  mines,  under  their  oversight,  even 
upon  the  land  of  others.  The  regality  was  thenceforth  generally 
exercised  in  this  form,  as  a  license  to  prospectors  ("  Finder- 
I3eleiluing  "),  both  by  the  king  and  the  Territorial  princes.  The 
Golden  Bull  granted  it  in  general  terms  to  the  Electoral  Princes. 
The  struggle  for  the  mining  regality  was  thus  finally  decided  in 
favor  of  the  Territorial  rulers ;  the  Peace  of  Westphalia  made  an 
end  of  the  Empire's  claim  to  the  regality  even  in  theory.  From 
that  time  onward  it  was  treated  by  the  common  law  as  included 
in  the  sovereignty  of  the  individual  States.  It  extended  from  the 
beginning  to  all  metals,  whereas  the  Koncalian  Constitution, 
issued  for  Italy,  mentioned  only  silver  pits  ("  argentariae  ").^ 
With  respect  to  other  metallic  products  no  rules  were  established 

1  Zycha,  "Rccht  dcs  iiltcsten  Bergbaus",  31. 

2  C'j.  No.  2,  p.  20U  supra. 

292 


Chap.  \1]  THE   LAW   OF  LAND:     OWNERSHIP  [§41 

in  the  common  law ;  although  in  many  places,  collieries  (which 
we  first  hear  of  in  connection  with  Wurmrevier,  near  Aachen, 
in  the  1300  s)  seem  to  have  been  subject  to  the  regality  from  the 
beginning.     (As  to  salt  deposits  compare  (II)  infra.) 

With  this  third  form  of  the  regality  there  was  very  closely  asso- 
ciated the  origin  of  so-called  "  free  "  mining. 

(B)  Free  mining  ("  Bergbaufreiheit  ").  We  have  seen  that 
down  into  the  1200  s  the  landowner  alone  was  privileged  to  open 
mines  upon  his  land  ;  it  was  only  necessary  that  he  should  secure 
from  the  lord  who  held  the  regality  the  grant  of  an  express 
authority  to  do  this.  If  a  stranger  to  the  land  wished  to  mine 
he  was  obliged  to  secure  the  permission  of  the  landowner,  who  re- 
tained a  "  stewardship  "  ("  Vogtei  ")  over  the  enterprise,  and  as 
the  holder  thereof  issued  regulations,  exercised  a  general  over- 
sight, collected  produce,  and  exercised  rights  of  judicature  over 
the  miners.  In  this  form  we  still  find  mining  rights  associated 
with  the  ownership  of  land  in  the  Sachsenspiegel.^  A  tendency 
had  already  set  in,  however,  which  carried  the  development  further. 
It  was  associated  with  the  customs  of  manorial  mining  concessions 
('*  Bergfreiungen  ").  With  the  great  increase  in  mineral  produc- 
tion that  took  place  at  the  end  of  the  1100  s,  it  became  more  and 
more  usual  for  the  landowner  in  whose  soil  it  was  conjectured 
metals  might  be  found  to  grant  to  all  experts  who  wished  to  try 
their  fortune  the  right  of  opening  prospect-pits  (grants  of  "  Schurf 
und  Bau  ")  within  a  certain  area  —  hence  called  a  "  gefreiter 
Berg",  a  "free"  or  "  franchised  "  mountain,  in  return  for  a 
definite  share  of  the  output.-  What  was  thus  originally  per- 
mitted voluntarily  in  isolated  cases,  soon  became  a  general  right ; 
the  idea  that  mining  should  be  free  upon  the  land  of  others,  which 
had  thus  made  its  appearance  in  such  "  free  "  or  open-mining  dis- 
tricts, was  applied  to  "  unfree  "  soil,  and  thus  special  and  local 
mining  concessions  ("  Bergfreiungen  ")  were  transformed  into  a 
general  privilege  of  free  mining  ("Bergbaufreiheit").  The  in- 
terests of  the  miners  worked  in  the  same  direction,  for  after  the 
exliaustion  of  open  districts  they  were  obliged  to  seek  employ- 
ment elsewhere ;  and  the  like  was  true  of  the  interests  of  the  Ter- 
ritorial rulers  as  holders  of  the  mining  regality,  since  to  them  the 
utmost  increase  of  the  mining  industry  was  desirable  for  financial 


1  Ssp.,  I.  35,  §2.  Cf.  Edgar  Schmidt,  "Die  Stellung  des  Saehsen- 
spiegels  zum  Ber^egal"  (Brcslau  dissertation,  1910). 

2  [All  the  mines  were  in  the  mountainous  regions,  whence  the  German 
terminology.    Ed.] 

293 


§  41  THE    LAW    OF   THINGS  [Book   II 

reasons.  As  a  result  of  tliesc  changes  the  regahty  came  to  be 
exploited  in  the  manner  above  indicated :  the  Territorial  rulers 
granted  the  right  of  mining  directly  to  those  who  petitioned  it, 
without  the  intervention  of  the  landowner,  placing  the  prosecu- 
tion of  the  industry  under  their  own  OAcrsight,  and  collecting 
royalties  upon  the  output.  The  "  stewardship  "  of  the  landowner 
became  thenceforth  of  negligible  importance;  he  retained  only 
the  right  to  a  certain  fraction  of  the  product,  and  at  times,  as  in 
Bohemia  and  ]Moravia,  a  share  in  the  royalties  collected  by  the 
State.  The  principle  of  free  mining  was  first  fully  developed  in 
the  oldest  mining  law  of  Freiberg,  of  the  early  1300  s.^ 

(C)  Modes  of  exploitation.  —  The  original  form  of  working 
mines  was  seigniorial  ("  herrschaftlich  ").  The  land-lords,  the 
king,  the  ecclesiastical  and  secular  landed  magnates,  worked  their 
mines  either  independently  by  their  unfree  dependents  under  the 
oversight  of  special  household  servitors  ("  Ministerialen "),  or 
leased  them  in  return  for  money  rents  or  other  dues.  This  seign- 
iorial form  of  exploitation  was  later  displaced,  however,  by  co- 
operative ("  genossenschaftlich  ")  working.  This  was  the  out- 
come wherever  a  community  of  laborers  originally  unfree  gradually 
acquired  rights  of  possession  and  exploitation  in  scattered  lodes  by 
associational  union,  thereby  exchanging  a  purely  personal  rela- 
tionship to  the  mine-owner  for  a  material  connection  with  the 
mine.  Under  some  circumstances  the  same  thing  happened 
suddenly,  as  e.g.  where  the  working  of  the  mine  was  entrusted  by 
contract  to  a  gang  of  miners  newly  arrived  in  the  district.  The 
material  basis  of  the  associations  formed  in  this  manner  was 
ordinarily  a  single  shaft.  All  the  members  were  actual  miners 
("  Gewerken  ") ;  and  no  longer  unfree,  but  free,  laborers.  In 
the  beginning  they  were  theoretically  entirely  equal  among  them- 
selves. Soon,  however,  a  technical  and  social  classification  be- 
came evident  among  them.  Labor  and  contributions  of  cai)ital 
were  distinguished.  The  beginning  was  marked  by  so-called 
"  cost  contracts "  of  the  associates,  who  were  originally  all 
manual  laborers  ;  only  a  portion  continued  to  work,  while  another 
part,  by  assuming  the  obligation  of  a  regular  money  contribution 
(known  as  "  Kost  "),  furnished  the  capital  indisjjensable  in  a 
more  developed  stage  of  mining.  Again,  it  often  happened  that 
certain  portions  of  a  mine  were  leased  by  the  "  Gewerken  "  to 
poor  laborers  known  as  pitmen  ("  Lohnhauer  ")  in  exchange 
for  a  share  of  the  product  ("  Lehnschaften  ",  "holdings").     It 

•  r.  Inama-Sternegg,  "WirtsehaftsKoschiehte  ",  III.  2  (1901),  150. 

294 


Chap.  VI]  THE   LAW   OF  LAND  :     OWNERSHIP  [§  41 

also  happened  that  leases  were  made  to  capitaHsts,  who,  in  ex- 
change for  a  certain  sum  of  money,  received  the  right  to  settle 
and  work  with  hired  laborers,  and  to  appropriate  to  themselves 
either  the  whole  or  part  of  the  produce.  Once  these  legal  insti- 
tutes were  developed,  a  distinction  was  made  between  the  whole 
body  of  those  employed  in  the  mine,  —  the  so-called  "  mine- 
commune  "  ("  Berggemeinde  "),  —  and  the  narrower  group  of  the 
"  Gewerkschaften  "  or  "  Gewerken  ", — -within  the  entire  body. 
Those  persons  were  regarded  as  members  of  the  latter  who 
possessed  a  mining-share  ("  Bergteil  ").  There  was  here  no  ques- 
tion, however,  of  a  physical  share,  but  (doubtless  from  the  begin- 
ning) only  of  a  freely  alienable  and  heritable  ideal  share-right, 
corresponding  to  the  modern  "  Kuxen."  The  right  of  the  "  Ge- 
werken  "  in  the  mine  was  an  ownership  in  collective  hand  ;  but  even 
the  oldest  associations  of  workmen-shareholders  ("  Gewerk- 
schaften  "  in  the  old  sense)  already  possessed  a  definite  organiza- 
tion in  their  assemblies,  so  that  their  development  into 
corporate  associations  was  easily  possible.  The  labor  associa- 
tions {"  Arbeitsgenossenschaften  ")  of  the  mining  law  were  thus 
transformed  in  the  course  of  the  1200  s  and  1300  s  into  capital- 
istic associations  ("  Gewerkschaften  "  in  the  new  sense).  This 
development  was  furthered  by  costly  tunnel-mining  (so-called 
"  Erbstollen  "),  which  demanded  large  capital,  as  well  as  by  the 
growing  practice  of  leasing  large  pitfields  in  place  of  the  former 
practice  of  letting  single  shafts,  with  consequently  increasing 
efficiency  of  exploitation.  It  was  completed  toward  the  end 
of  the  1400  s  in  the  so-called  job  contracts  ("  Gedingevertrage  "), 
which  originated  in  Saxony  and  displaced  the  old  "  Kostvertrage  ", 
"  Lehnschaften  ",  and  "  Teilmieten."  The  first  exhaustive  pro- 
visions of  these  "  Gedinge  ",  —  the  labor  contracts  between  the 
individual  miners  and  the  "  Gewerkschaft  ",  —  are  contained  in 
the  mining  ordinance  of  Schneeberg  of  1479,  which  was  preceded 
by  various  other  ordinances.  Beginning  with  the  ordinance  of 
Annaberg  of  1509  there  became  established  in  such  contracts  an 
invariable  form  which  continued  to  prevail  in  Germany  for  three 
centuries  following,  and  the  principles  of  which  remained,  for  the 
most  part,  in  force  until  supplanted  by  the  Prussian  mining  laws 
of  18G0  and  18G5.  These  "  Gedinge  "-ordinances  regulated  the 
normal  labor  contract  of  the  mining  law  as  a  piece-work  contract ; 
they  sought  to  assure  a  just  protection  to  the  interest  of  the 
laborers  by  precise  provisions  concerning  the  form  and  substance 
of  the  contract,  the  cooperation  of  the  mine  officials  in  its  conclu- 

295 


§41]  THE   LAW    OF   THINGS  [BoOK   II 

sion,  and  the  giving  out  of  the  work.  In  this  process  a  great  mass 
of  ordinary  manual  wage-earners  appeared  beside  the  "  Gewer- 
ken  ",  and  the  transformation  of  the  "  Gewerkschaften  "  into 
capitahstic  associations  was  completed. 

(D)  The  Shaueholders'-unions  ("Gewerkschaften")  of 
THE  OLDER  LAW.  —  The  "  Gcwcrkschaft  ",  as  it  existed  from  the 
1400  s  down  to  the  middle  of  the  1800  s,  was  already  a  form  of 
union  very  nearly  related  to  the  modern  share  company.  Ac- 
cording to  the  better  view  it  possessed  the  qualities  of  a  corporate 
association ;  only  the  Prussian  law  treated  it  as  a  mere  co-owner- 
ship. In  mining  operations  in  which  a  relatively  large  number 
of  persons  (namely,  more  than  eight)  were  concerned,  it  was  ob- 
ligatory to  form  a  "  Gewerkschaft  "  ;  whereas,  when  the  number 
was  less  than  eight,  and  either  all  or  part  of  these  carried  on  the 
mine  themselves,  it  was  possible  to  adopt  the  form  of  an  ordinary 
partnership.  When  a  "  Gewerkschaft  "  was  established  the  share- 
holders ("  Gewerken  ")  were  bound  in  the  first  place  to  meet  the 
expenses  of  the  opening  and  installation  of  the  mine.  For  this 
purpose  the  mine  was  divided  into  a  definite  number  of  ideal 
share-rights  ("  Kuxe  "),  —  according  to  the  older  usage  one 
hundred  and  twenty-eight,  —  which  were  then  taken  by  the  "  Ge- 
werken ",  although  one  might  be  interested  to  the  extent  of  a 
larger,  and  another  to  the  extent  of  a  smaller,  number.  In  pro- 
portion to  the  number  of  shares  so  acquired  by  him,  each  associate 
shared  in  the  expenses  of  operation,  made  contributions  while  the 
mine  gave  no  returns,  and  shared  in  profits  as  soon  as  such  were 
realized.  These  "  Kuxe  ",  which,  as  ideal  capital-shares  ("  Wert- 
anteile  ")  in  the  property  of  the  mining  union,  corresponded 
exactly  to  modern  commercial  shares  ("  Aktien  "),  and  which,  like 
the  latter,  assured  to  the  "  Gewerken  "  not  a  direct  common  con- 
trol of  the  mine  but  only  a  relative  share  in  its  associational  control, 
were  treated  as  immovables,  which  could  be  divided,  alienated, 
and  pledged  by  their  owners.  They  were  registered  in  a  minc-l)ook 
("  Bergbuch  ")  similar  to  a  general  land  register ;  alienations  and 
pledges  were  realized  by  transfers  and  entries  in  the  transfer  book 
("  Gegenbuch  ",  "  Berggegenbuch  ").  Actions  of  partition  were 
impossible.  The  general  organ  of  the  union  was  the  shareholders' 
("  Gewerken  ")-assembly.  Outwardly,  the  union  was  represented 
by  a  miners'-committee  ("  Grubenvorstand  ")  or  a  special  repre- 
sentative. Quite  commonly  such  an  agent  was  at  the  same  time 
known  as  the  lessee  ("  Lehnstriiger  ")  of  the  mine,  to  whom  the 
State  granted  rights  of  judicature  over  the  mining  district. 

296 


Chap.  VL]  THE   LAW   OF  LAND  :     OWNERSHIP  [§  41 

(2)  The  Modern  Law.  —  (A)  Modern  mining  legislation.  — 
The  mining  law  in  the  form  developed  in  earlier  centuries  proved 
to  be  inadequately  adapted  to  the  enormous  development  which 
the  mining  industry  experienced  in  the  1800  s.  The  principle  of 
"  free  "  mining,  in  the  sense  above  explained,  compelled  the  State 
to  grant  the  right  of  mining  to  every  solicitant  who  satisfied  cer- 
tain general  and  definite  requirements.  But  it  did  not  hinder  the 
State  from  making  exceptions  to  those  conditions,  especially  so- 
called  "  district  "  concessions  ("  Distriktsverleihungen  ")  by  which 
the  mining  regality  of  a  large  district  was  granted  to  particularly 
favored  persons  ("  Standesherren  "),  who  thereby  acquired  in  such 
districts  the  exclusive  privilege  of  mining.  The  Territorial  rulers, 
moreover,  were  not  bound  to  respect,  as  regarded  the  mines 
worked  directly  for  their  own  fisc,  the  conditions  that  had  been 
developed  in  favor  of  free  mining.  Moreover,  the  management 
of  the  mining  regality  had  finally  resulted  in  an  almost  exclusive 
control  of  the  mining  industry  by  public  officials;  the  share- 
holders' unions  had  nothing  left  to  do  beyond  administering  the 
physical  property  of  the  mine.  "  This  system  of  official  mining 
with  foreign  capital  ("  Direktionsprinzip  ")  was  perhaps  de- 
veloped in  its  purest  form  in  the  rules  of  the  Prussian  Territorial 
Law."  1  The  high  taxation  of  the  mines  was  a  considerable  im- 
pediment to  free  exploitation  (the  Prussian  "  Landrecht  "  still 
maintained  the  fiscal  share  at  one-tenth  of  the  gross  output). 

The  production  of  the  mines,  which  especially  in  the  case  of 
coal  and  iron  increased  in  undreamed-of  measure,  needed,  as  con- 
trasted with  this  system,  self-government,  free  competition,  and 
unrestricted  speculation.^  Following  the  example  of  French 
legislation  (statutes  of  1791  and  1810)  all  the  German  States  intro- 
duced regulations  of  the  mining  law  upon  an  entirely  new  basis. 
Oppressive  taxes  were  moderated  or  wholly  done  away  with  (in 
Prussia  by  the  Act  of  July  14th,  1893) ;  the  control  of  exploitation 
was  put  in  the  hands  of  the  mine  owners  (in  Prussia  by  Acts  of 
1841  and  1860) ;  and  almost  everywhere  the  mining  regality  was 
abolished,  —  although  subject  to  the  maintenance  of  a  supreme 
control  of  mining  by  the  vState  ("  Berghoheit  ")  which  is  exercised 
through  special  administrative  oflScers.  This  last  was  accom- 
plished for  all  the  Prussian  States  by  a  general  Mining  Act  of 
July  24th,  1865.  This  statute,  which  was  later  introduced  into  the 
territories  shortly  thereafter  added  to  Prussia,  and  into  Waldeck, 

^Gierke,  "Genossenschaftsrecht",  I,  975. 

'  Dernburg,  " Biirgerliches  Recht",  III,  §  141. 

297 


§  41]  THE   LAW   OF   THINGS  [Book    II 

aiul  which  has  been  sui)i)UMn(Mite(l  and  amended  by  a  series 
of  emendatory  acts  (among  others  by  those  of  1873,  1892,  and 
1905,  as  well  as  by  the  Prussian  ordinance  of  1S99  promulgating 
the  new  imperial  Civil  Code)  has  attained  an  epoch-making  im- 
portance. Most  of  the  other  German  States  have  followed 
Prussia  in  tlicir  mining  legislation  and  have  copied  it :  Brunswick 
1SG7,  Saxe-Mciningen  1SG8,  Saxe-Coburg-Gotha  1868,  Bavaria 
1869,  Reuss  j.  L.  1870,  Altenburg  1872,  Alsace-Lorraine  1873, 
Wiirttemberg  1874,  Anludt  1875,  Ilessia  1876,  Baden  1890,  Bir- 
kenfeld  1891,  Schwarzburg  1894,  Liibeck  1895;  the  Saxon  law  of 
1868  also  follows  it  in  essentials.  Thus  the  Prussian  Act  of  1865 
is  the  basis  of  a  general  law  of  mines  which,  in  essentials,  prevails 
throughout  Germany,  notwithstanding  that  this  branch  of  the 
law  has  been  reserved  to  State  legislation  (EG,  §  67).  It  is  true 
that  in  very  recent  years  a  momentous  reversal  of  tendencies  has 
appeared.  In  order  to  hinder  the  unrestricted  exploitation  by 
private  enterprise,  and  especially  by  powerful  partnerships,  of 
mineral  resources  indispensable  to  the  public,  particularly  coal 
and  salt,  some  States  (notably  Prussia,  but  also  among  others 
Hamburg)  have  returned  to  the  principle  of  the  old  regality,  — 
see  the  Prussian  Act  of  June  18th,  1907,  and  the  Hamburg  Act  of 
June  25th,  1906. 

(B)  Le.yding  principles  of  the  present  mining  law.  —  (a) 
"  License  "  ("  verleihbare  ")  Minerals.  —  The  laws  of  the  differ- 
ent States  upon  this  subject  provide  in  detail  which  minerals  are 
withheld  from  the  landowner  and  reserved  to  exploitation  under 
the  mining  law.  Ordinarily  these  are  the  most  important  metals ; 
that  is,  —  in  addition  to  gold  and  silver,  —  iron,  zinc,  lead,  cop- 
per, and  manganese ;  also  pit  coal,  lignite  (not,  however,  in  the 
kingdom  of  Saxony,  nor  in  the  Prussian  territories  formerly  be- 
longing to  the  kingdom  of  Saxony)  and  graphite ;  also,  in  many 
cases,  petroleum  and  naphtha  ;  finally  rock  salt  and  salt-wells  (as 
to  which  compare  (II)  i>ifra).  On  the  other  hand,  precious 
stones,  saltpetre,  gypsum,  marble,  granite,  and  other  stones,  were 
ordinarily  left  to  the  landowner.  The  former  class  of  "  license  " 
or  "  concession  "  ("  verleihbare  ")  minerals  were  not  allowed  to 
be  dug  or  prepared  for  the  market  otherwise  than  subject  to  the 
mining  laws.  The  license  for  this  purpose  can  only  be  secured  by 
concession  of  the  State.  Thanks  to  its  sovereignty  over  mining, 
therefore,  the  State  creates  all  concrete  mining  rights.^  This 
right  is  not  exactly  ownership  in  the  minerals  while  yet  unbroken, 
'  Crome,  "Biirgerliflies  Recht",  III,  445. 
298 


Ch.\P.   VI]  THE    LAW    OF   LAND  :     OWNERSHIP  [§  41 

nor  in  their  deposits^,  notwithstanding  that  in  many  statutes  use 
is  made  of  the  expression  "  mining  properties."  On  the  contrary 
it  is  a  usufructuary  right :  the  exclusive  authority  to  appropriate 
the  minerals  that  may  be  found  in  a  certain  piece  of  land.  This 
usufructuary  right,  however,  does  not  substantially  restrict  the 
rights  of  landed  ownership,  because  the  authority  to  utilize  for 
mining  purposes  the  space  beneath  the  surface  of  the  earth  is  not 
included  within  ownership  of  the  surface  as  such:  The  landowner 
must,  therefore,  himself  procure  a  license  for  mining  in  case  he 
desires  to  prosecute  it  upon  his  land  ;  and  for  the  same  reason  the 
wrongful  removal  by  third  persons  of  minerals  that  have  not  yet 
been  mined  is  neither  larceny  nor  embezzlement,  but  an  inde- 
pendent delict,  namely  a  trespass  upon  a  licensed  right  of  occu- 
pancy. 

(b)  Right  to  Prospect  ("  Schiirfrecht  ").  Unless  "  concession  " 
minerals  have  been  accidentally  discovered,  the  first  step  toward 
exercising  a  mining  right  is  the  opening  of  so-called  "  Schiirfe  " 
(costean  pits), — that  is,  a  systematic  search  for  mineral.  The 
landowner  himself  has  authority  to  prospect  without  going  further. 
But  third  persons  may  prospect  upon  the  land  of  others, 
although  only  with  the  consent  of  the  landowner  or  by  authority 
of  a  license  issued  by  the  Mining  Board.  This  permission  maj^ 
be  denied  only  for  definite  statutory  reasons,  namely,  only  when 
the  place  in  question  is  one  where  such  prospecting  is  prohibited, 
or  when  decisive  reasons  of  public  interest  are  opposed.  Aside 
from  such  cases  there  is  therefore  unrestricted  freedom  of  pros- 
pecting. Damages  must,  however,  be  given  to  the  landowner, 
and  ordinarily  in  advance;  and  he  may  demand  security.  He 
may  also  appeal  to  the  courts  against  a  resolution  of  the  Mining 
Board  by  which  a  right  of  prospecting  has  been  granted,  and 
equally  as  regards  the  amount  of  damages  awarded  him.  This 
state  of  the  law,  theretofore  existing,  was  altered,  as  regarded 
certain  minerals,  by  an  amendment  of  1907  to  the  Prussian  IMining 
Law.  According  to  it  the  right  to  search  for  pit-coal  (save  in 
the  provinces  of  East  Prussia,  Brandenburg,  Pomerania,  and 
Schleswig-Holstein),  rock  salt,  salts  of  potassium,  magnesium, 
borate,  along  with  other  salts  and  salt  springs  occurring  in  con- 
junction with  the  foregoing,  belongs  to  the  State  alone  through- 
out the  kingdom.  As  regards  these  minerals,  prospecting  is 
therefore  permitted  only  to  the  State  or  to  persons  whom  it 
specially  empowers.  For,  under  the  statute,  the  right  to  search 
for  and  to  procure  the  salt  may,  and  that  to  search  for  and  pro- 

299 


§  41]  THE    LAW    OF    THINGS  [BoOK   II 

cure  coal  must,  be  conveyed  to  individuals;   except  that  certain 
fields  of  pit-coal  are  reserved  to  the  State. 

(c)  The  Claim  ("  IVIutung  ").  —  If  a  prospector  has  discovered 
mineral,  he  must  present  to  the  Mining  Board  a  written  petition 
that  the  right  may  be  granted  to  him  to  take  the  mineral  from  a 
certain  district  ("  Felde  ").  This  petition  is  known  as  a  "  ]\Iu- 
tung  "  (a  warning  notice).  Of  several  claims  for  one  and  the 
same  mineral  in  the  same  field  the  earliest  in  date  takes  pre- 
cedence ;  on  the  other  hand,  the  rights  of  one  who  has  discovered 
the  mineral  before  such  claimants  take  precedence  of  all  their 
claims,  —  he  enjoys  "  das  Alter  im  Felde  "  ("  seniority  in  the 
field"),  —  provided  he  presents  his  own  claim  within  a  short 
time  after  his  discovery.  This  is  true,  however,  in  case  of  an 
accidental  find  of  mineral,  only  as  regards  the  owner  of  the  land, 
or  another  person  who  accidentally  finds  one  "  concession  " 
mineral  in  a  mine  he  is  working  for  another  mineral :  all  other 
persons  must  have  prospected  under  official  license  in  order  to 
enjoy  precedence  upon  the  basis  solely  of  a  prior  discovery. 

(d)  The  Lease  ("  Verleihung  ",  grant).  —  After  the  formal  claim 
there  follows  the  grant  or  concession  by  the  ^Mining  Board  of  the 
ownership  of  the  minerals  within  the  mine  ("  Bergwerkseigen- 
tum  "),  which  is  accomplished  by  the  delivery  of  a  documentary 
grant.  This  creates  in  the  grantees  an  exclusive  right  to  mine  the 
minerals  so  conveyed  within  a  claim  of  definitely  indicated  extent 
and  form.  It  is  "  an  extended  right  in  the  nature  of  real  property  " 
("  ein  ausgedehntes  Immobiliarrecht  "),^  which,  like  every  other 
right  in  land,  may  be  registered  in  the  land-book,  and  requires 
such  registry  in  order  to  be  of  full  effect  against  third  persons. 
This  entry  is  made  upon  a  separate  sheet  of  the  land-book ;  either 
on  motion  of  the  Mining  Board  after  the  grant,  or  at  the  instance 
of  the  grantee,  who  may  be  called  upon  by  the  Board  to  take  the 
necessary  steps  in  the  matter.  The  Mining  Board  is  obliged  to 
make  such  concessions  as  are  petitioned  for  whenever  the  statu- 
tory requirements  are  satisfied.  But  the  claimant  has  no  right  of 
action  against  them  to  compel  a  grant. 

(e)  Rights  and  Duties  of  Mine  Owners.  —  Mining  rights  are 
treated  by  the  statute  as  immovable  ])ropcrty.  They  are  alien- 
able and  heritable  like  the  ownership  of  land  ;  therefore  a  person 
entitled  to  such  rights  can  convey  them  by  real  agreement  ("  Auf- 
lassung  ")  and  registry  in  the  land-book;  he  can  also  charge 
them,  and  (particularly)  mortgage  them. 

>  Crome,  "  Burgerliches  Recht ",  III,  449. 
300 


Chap.  M]  THE   LAW   OF   LAND  :     OWNERSHIP  [§  41 

A  person  may  exercise  his  mining  rights  in  such  manner  as  he 
may  desire.  However,  the  Mining  Board,  by  virtue  of  the  State's 
sovereignty  over  mines,  exercises  a  supervisory  poHce  power. 
Therefore  a  plan  of  exploitation  must  be  submitted  to  it  for  ap- 
proval. In  the  main,  mines  are  worked  underground ;  the  mine 
owner  may,  however,  demand  that  the  landowner  permit  him,  in 
return  for  compensation,  to  make  use  also  of  the  surface,  in  so  far 
as  this  may  be  necessary  for  proper  exploitation ;  and  in  case  of 
disagreements  the  Mining  Board  decides  between  them.  Under 
such  circumstances  the  mine  worker  receives,  therefore,  either  a 
servitude  (e.g.  one  of  way)  or  a  superficies  (perpetual  building  right). 
When  the  user  of  the  surface  continues  for  a  long  time  the  land- 
owner may  demand  that  the  mine  owner,  instead  of  a  bare  usu- 
fruct, shall  acquire  the  ownership  of  the  land.  The  mine  owner 
can  also  acquire  similar  rights  of  usufruct  in  lands  outside  his 
mining  claim.  For  the  working  of  a  mine  underground  no  damages 
can  be  demanded  by  the  landowner,  because  he  himself  has  no 
right  (since  the  earlier  share-rights  of  the  landowner  have  been 
done  away  with)  to  the  exploitation  of  minerals  found  beneath 
his  land.  The  person  entitled  to  mining  rights  is  bound  to  give 
damages  only  for  what  are  known  as  "  Bergschaden  " ;  that  is, 
trespasses  which  injure  the  landowner  in  those  uses  which  he  is 
legally  entitled  to  make  of  his  land.  Heritable  adit  privileges 
("  Erbstollengerechtigkeiten  ")  have  no  longer  been  granted  since 
the  statute  of  1865. 

(f)  The  Modern  Mining  Company  ("  Gewerkschaft  ")•  —  The 
act  of  1865  gave  a  new  form  to  the  mining  company.  This  was 
chiefly  because  the  right  which  every  shareholder  ("  Gewerke  ") 
formerly  possessed  to  pledge  his  share  deprived  the  company 
itself  of  the  possibility  of  making  an  independent  pledge  of  the 
entire  mine,  in  order  to  procure  the  credit  desirable  for  an  increase 
of  production.^  The  association  in  its  new  form  is,  however, 
as  contrasted  with  the  older  law,  only  a  secondary  form.  When 
the  shareholders  are  numerous  other  forms  of  union  may  be 
chosen  as  desired,  —  the  society  ("societas  ")  of  the  Roman  law, 
the  partnership  of  the  Germanic  private  law,  the  share  com})any, 
or  the  limited  partnership  of  the  commercial  law,  or  others;  and, 
on  the  other  hand,  when  they  are  few  in  number,  a  "  Gewerk- 
schaft "  may  be  formed,  —  inider  the  Prussian  law  two,  under  the 
Saxon  three,  persons  suffice  for  its  formation.  The  status  of  a 
juristic  person  has  been  clearly  and  explicitly  attributed  to  the 
1  Dernburg,  op.  cit.,  §  152. 
301 


§  41]  THE    LAW    OP    THINGS  [BoOK   II 

modern  mining  company.  The  mining  property  therefore  belongs 
to  it,  as  a  person,  and  not  to  the  individual  members  of  the  union. 
It  is  most  nearly  related  to  the  share  company  of  the  com- 
mercial law  ("  Aktiengesellschaft  ").  Like  the  "  Aktie  ",  the 
"  Kux  "  is  a  document  that  represents  a  right  of  membership; 
both  are  rights  in  the  nature  of  movable  property  ("  INIobiliar- 
recht  "),  — and  no  longer  (as  once)  shares  in  immovable  property 
which  were  therefore  themselves  immovable.  Under  the  private 
law  of  to-day  the  "  Kux  "  is  no  longer  a  thing  ("  Sache  "),  not 
even  a  movable  thing,  as  it  still  was  under  the  Prussian  Mining  Act. 
In  Prussia  also  the  earlier  conception  of  the  mining  law  has  ac- 
cordingly been  altered  by  the  Prussian  ordinance  promulgating 
the  imperial  Ci\il  Code :  it  is  no  longer  said  of  such  shares  that 
they  have  the  qualities  of  movable  things,  but  that  they  belong 
among  movable  pro{)erty.  The  "  Kux  "  is  distinguished  from 
the  "  Aktie  "  by  the  fact  that  it  always  purports  to  be  personal, 
and  never  bearer,  paper ;  and  that  it  has  no  fixed  face  value,  but 
purports  to  convey  only  a  certain  quotal  share,  — the  number  of 
such  shares  being  no  longer,  as  formerly,  one  hundred  and  twenty- 
eight,  but  one  hundred  or  one  thousand.  The  "  Kux  "  is  freely 
alienable  (its  conveyance  requires  a  transfer  in  the  share  register, 
*'  Gewerkenbuch  ")  and  is  also  freely  pledgeable.  But  "  the 
pledge  of  the  *  Kux  '  no  longer  has  anything  to  do  with  the  pledge 
of  the  mine ;  the  latter  requires  an  act  of  the  union,  the  former  is 
the  act  of  the  individual  shareholder  and  affects  only  his  right  of 
membership.  Accordingly,  the  rights  of  mortgagees  of  the  mine 
take  precedence  of  the  rights  of  pledgees  of  the  '  Kux.'  "  ^  As  a 
further  distinction  between  "  Kux  "  and  "  Aktie  "  the  older  legal 
rule  has  been  maintained  that  the  members  of  the  company  are 
not  freed  from  obligation  so  soon  as  they  have  paid  the  subscrip- 
tions for  which  they  have  made  themselves  responsible,  as  are 
the  shareholders  of  the  "  Aktiengesellschaft  ",  but  are  liable  for 
supplementary  levies  ("  Zubussen  ")  so  long  as  the  exploitation 
of  the  mine  requires  these.  The  organization  of  the  company  has 
remained,  generally  speaking,  that  of  the  earlier  law;  its  organs 
are  the  shareholders'  meeting,  and  a  board  of  directors  or  other 
representative. 

(g)  The  Legal  Status  of  the  Minera.  —  In  earlier  times  ordinances 

issued  by  the  State  regulated,  in  the  most  important  points,  the 

legal  relation  between  the  miners  as  wage  earners  and  the  "  Ge- 

werken"  as  "entrepreneurs  "  ;  but  the  legislation  of  the  mid-1800  s 

'  Crome,  op.  cit.,  460. 

302 


Chap.  \I]  THE   LAW   OF   LAXD  .     OWNERSHIP  [§  41 

adopted  the  principle  of  contractual  freedom,  refraining  from  all 
provisions  of  that  nature,  and  "  introduced  for  the  mine  owners 
full  control  of  their  mines  and  unrestricted  management  in  their 
exploitation."  ^  Especially  was  this  true  of  the  Prussian  statutes 
of  1860  and  1865.  In  more  recent  years,  however,  a  series  of 
compulsory  regulations  have  been  issued,  —  partly  in  the  form  of 
imperial  law  in  the  Industrial  Code  and  its  amendments,  and 
partly  as  State  law,  —  concerning  labor  contracts  between  mine 
owners  and  their  employees  regarding  wages  and  notices  of 
quitting,  the  regulation  of  work,  and  other  matters.  In  Prussia 
the  amendments  of  June  24th,  1892,  and  of  July  14th,  1905,  to 
the  Mining  Act  are  particularly  to  be  considered,  —  prohibition 
against  mine  operating  abuses  ("  Wagennullens  "),  etc.  The 
miners,  who  became  united  in  local  organizations  at  an  early 
period,  are  obliged  to-day  to  join  the  miners'  unions  ("  Knapp- 
schaftsverein  ").  These  are  usually  juristic  persons,  and  are  in- 
cluded, as  such,  under  the  modern  system  of  industrial  insurance. 
(II)  Law  of  Salterns.^  —  This  portion  of  the  law  has  developed 
similarly  in  man}-  respects,  and  differently  in  many  others,  from 
the  mining  law.  Here  also  the  right  of  the  landowner  to  the 
products  of  his  own  land  was  the  starting  point  of  development ; 
here  also  it  was  upon  the  manors  that  great  works  were  developed 
(such  as  Reichenhall),  already  in  the  Carolingian  period,  to  meet 
the  demand  for  salt.  In  addition  to  such  seigniorial  workings 
there  were  early  developed,  as  in  the  case  of  mines,  associational 
types  of  exploitation.  These  were  particularly  complicated,  for 
from  the  beginning  a  great  number  of  persons  were  interested  in 
the  salterns,  or  possessed  of  rights  in  their  produce.  Beside  the 
land-lord,  who  remained  the  owner  of  the  salt  spring,  there  were 
other  landed  magnates  (cloisters  and  secular  lords)  who  had 
acquired  ownership  in  the  salt-cotes  or  boiling  houses  ;  further,  the 
salters  themselves,  who  had  rights  in  the  basins  either  as  lessees  or 
as  owners,  and,  finally,  third  persons  possessing  rights  to  demand 
salt  that  was  obtained,  that  is,  customers  of  the  saltern.  In  the 
second  half  of  the  Middle  Ages  the  "  panners  ",  the  persons  who 
controlled  the  salt  basins,  succeeded  in  acquiring  a  dominant  posi- 
tion in  the  associations  that  were  formed  of  all  these  interested 
persons.     In   the   course   of  this   development   the   "  panners ", 

'  Dernhurg,  op.  cit.,  §  154. 

2  V.  Inayna-Sternegq,  "Zur  Verfassungsgesehiehte  der  deutsehen  Salinen 
im  Mittolalter"  (1879) ;  Burmester,  "Der  staatliche  Salzgewimiungsvorbe- 
halt  im  gegenwiirtigen  deutsehen  Gesamtreehtssystem",  in  Arch.  off.  R., 
XXIII  (19U8),  71-122,  209-241. 

303 


§41]  THE    LAW    OF    THINGS  [BooK   II 

exactly  as  In  the  case  of  the  "  Gewerken  "  of  the  mining  hiw, 
developed  from  laborers  originally  generally  unfree  into  capitalist 
salters,  whose  rights  passed  by  inheritance  as  proj^erty,  and  who 
left  to  ordinary  laborers  the  technical  labor  of  the  boiling ;  and 
the  associations  of  salters  ("  Pfjinnerschaften ")  acquired  the 
character  of  capitalistic  unions.  They  were  corporatcly  organ- 
ized ;  their  shares,  ordinarily  one  hundred  and  eleven  in  number, 
and  which  corresponded  to  the  "  Kuxe  ",  were  called  "  pans  " 
("  Pfannen  ").  In  addition  to  these  salters'-associations  there 
were  also  individual  lords  who  were  the  owners  of  salterns  and 
were  known  as  "  Salzherren  ",  "  Salzbeerbte  ",  and  "  Salzjunker." 
In  the  meanwhile,  as  in  the  case  of  the  mining  regality,  a  salt 
regality  had  de\-eloped,  which,  like  the  former,  passed  to  the  Terri- 
torial rulers,  and  this  led  in  their  hands  to  a  comprehensive  public 
oversight  of  the  salt  industry,  and  also  (herein  differing  from  the 
mining  law)  to  a  State  monopoly  of  the  salt  trade.  This  monopoly 
was  abolished  by  an  imperial  statute  of  October  12th,  18G7. 
Wherever  a  salt  regality  became  established,  —  which,  according 
to  the  best  opinion,  was  probably  as  generally  true  as  in  the  case 
of  the  mining  regality,  —  there  also  developed  in  the  salt  wells 
the  principle  of  free  mining  ("  Bergbaufreiheit  ").  This  was  true 
of  the  Prussian  law  until  the  amendatory  statute  of  1907  above 
referred  to,  by  which  the  old  system  was  abolished.  Since  then, 
prospecting  for  rock  salt,  for  potash,  magnesium,  and  for  borates, 
as  well  as  other  salts  occurring  in  the  same  deposits  and  for  salt 
wells,  has  no  longer  been  free  to  everyone,  but  only  to  the  State 
and  to  persons  by  it  empowered.  In  many  of  the  States  a  regality 
was  maintained  in  the  sense  that  the  mining  of  salt  is  permitted 
to  the  State  alone  (as  in  Saxony,  Bavaria,  and  Baden,  among 
others)  ;  in  other  States  it  has  been  reserved  to  the  landowners 
(as  in  Hannover),  and  this  has  not  been  altered  by  the  act  of  1907. 
§  42.  Restrictions  upon  Alienation  due  to  Co-rights  of  Rela- 
tives ("  gebundene  Giiter  ").  —  (I).  Rights  in  Expectancy  and  of 
Co-alienation.^  —  (1)  Rights  in  Kxpcdancy  ("  Wartrcchte  ").  — 
The  most  important  restriction  to  which  an  owner's  dispositive 
power  over  his  property  was  subjected  resulted  from  the  collec- 

^  Fipper,  "Das  Beispruehsrecht  naeh  altsafhsisehcm  Recht",  no.  3 
(1879)  of  Gierke's  "Untorsuchungcn"  ;  Adlrr,  "t)ber  das  P>ben\vartrecht 
naf;h  don  idtesten  bairischen  Rochtsquollon",  no.  \VJ  (ISO!)  of  tlio  samo; 
Brunnrr,  "Boitriifjo  zur  Geschifhto  rlos  ffcrmanisr^hon  Wartrechts",  in 
the  "Berliner  Festpabe  fiir  Dernburg"  (1900);  Fickir,  "Untersuehungeu 
ziir  Erbenfolge",  V.  1  (1902),  \VA  el  srq.;  Frh.  v.  Frri/l(i(jh-Lnriiu/hoven, 
"Beispruehsrecht  und  Erbenhaftung",  in  Z^.  R.  G.,  XXVHl  (1907),  09- 
102. 

304 


Chap.  VL]  THE    LAW   OF   LAND  :     OWNERSHIP  [§  42 

tive  rights  which  once  existed,  both  in  land  and  in  movables,  in 
favor  of  household  communities  and  (in  still  earlier  times)  of  the 
sibs.  The  collective  right  of  the  members  of  the  household,  — 
who  with  reference  to  all  household  property  constituted  a  com- 
munity of  collective  hand,  —  made  it  impossible  for  the  head  of 
the  community,  the  house-lord  ("  Hausherr  "),  to  dispose  of  the 
collective  estate  by  his  individual  act.  Gradually,  however,  his 
position  became  a  freer  one,  and  at  least  a  limited  dispositive  power 
was  in  time  conceded  him.  On  the  other  hand  he  continued  to 
be  bound  by  so-called  rights  in  expectancy.^  A  right  in  expect- 
ancy in  its  oldest  form,  as  it  appears  in  a  great  number  of  Ger- 
manic legal  systems,  permitted  a  decedent  to  dispose  freely  of 
only  a  certain  part  of  his  property,  the  free  portion  ("  Freiteil  " ; 
"  Freiteilsrechte  ",  —  legal  systems  of  this  class).  On  the  other 
hand  he  could  not  deprive  of  the  remaining  portion  the  heirs  who 
were  entitled  to  expect  it.  Such  rights  were  usually  attributed 
only  to  sons,  but  at  times,  in  the  absence  of  such,  also  to  daugh- 
ters ;  in  other  words,  to  the  members  of  the  household  com- 
munity in  its  narrowest  form.  In  order,  hovv'cver,  to  make  use 
of  his  power  over  the  free  portion,  the  decedent  was  originally 
bound  to  have  made  a  partition  of  the  remainder  among  his  sons ; 
only  in  time  was  this  requirement  allowed  to  lapse,  —  a  capitu- 
lary of  Louis  the  Pious  abolished  it  for  all  the  folk-laws  of  the 
Frankish  Empire.^  The  amount  of  the  free-portion,  which  he  was 
free  to  dispose  of  either  entirely  as  he  pleased  or,  in  the  earlier 
period,  at  least  to  churches  and  cloisters  for  the  good  of  his  soul 
("  Seelgabe "),  was  variously  fixed  in  different  legal  systems. 
Some  of  them  measured  the  free-portion  by  "  head-rights  ",  with 
reference  to  the  number  of  heirs  entitled  to  rights  in  expectancy 
("  Kopfteilsrechte  ",  —  "  per  capita  systems  ") ;  so  that,  for  ex- 
ample "  the  father  who  had  only  one  son  could  dispose  of  one 
half,  if  he  had  two  sons  of  one  third,  and  if  nine  sons  of  one  tenth, 
of  his  property."^  This  was  true  of  the  Lombard  and  Bavarian 
law,  probably  of  the  Alamannic  and  Thuringian,  and  also  of  many 

1  Ficker  regards  the  right  in  expectancy  ("Wartrecht")  as  having  been 
introduced  only  later  in  place  of  an  original  freedom  in  dispositive  powers, 
because  it  is  impossil)le,  in  view  of  the  great  diversity  of  its  later  develop- 
ment, to  ascribe  to  the  right  in  expectancy  a  common  or  primitive  Ger- 
manic character;  but  this  conclusion  must  be  a  "petitio  prineipii"  for 
any  one  who  does  not  accept  his  highly  artificial  theory  —  which  is  cer- 
tainly wholly  devoid  of  convincing  proof  —  of  the  interrelations  and 
derivations  of  the  various  Germanic  legal  systems. 

2  Cap.  legib.  ad.  818-819,  C.  9  (M.  G.,  Cap.,  I,  282). 

3  Brunner,  essay  just  cited,  5. 

305 


§  42J  THE    LAW    OF   THINGS  [BoOK   II 

Swedish  as  well  as  of  the  Danish  systems.  Other  legal  systems, 
on  the  other  hand,  made  the  free  portion  a  fixed  fraction, — a 
half,  a  third,  a  fifth,  or  a  tenth,  —  of  the  property,  or  of  certain 
goods ;  the  number  of  those  possessed  of  exj)ectant  rights  being 
disregarded.  This  was  the  rule  of  the  law  of  the  Salic  Franks  and 
of  the  Frisians,  also  of  the  \Yest  Gauls  and  Burgundians  ("  Freiteils- 
rechte  ",  with  fixed  quotas).  The  purpose  of  the  right  in  expect- 
ancy in  this  oldest  form  was,  therefore,  on  one  hand  to  prevent  a 
decedent  from  harming  the  next  heirs  by  any  disposition  of  the 
heritage,  and  on  the  other  hand  to  make  possible  at  least  a  limited 
dispositive  power  upon  his  part.  As  may  readily  be  understood, 
the  Church,  in  particular,  sought  to  support  the  latter. 

(2)  Plights  of  Co-alienation  ("  Beispruchsrechte  ").  —  A  more 
modern  form  of  restriction  imposed  by  blood  relationships  ujion 
dis])ositive  powers  was  the  so-called  "  Beispruchsrecht."  This, 
inilike  the  older  right  in  expectancy,  which  was  one  of  substance, 
was  a  formal  right  of  cooperation  in  dispositive  acts,  and  accord- 
ing to  Brunner's  supposition  ^  it  probably  goes  back  to  the  owner- 
ship that  once  existed  in  the  sibs,  instead  of  originating,  like 
rights  in  expectancy,  in  a  collective  ownership  by  the  members 
of  a  household.  It  was  particularly  developed  in  the  Saxon  law. 
In  the  "  Lex  Saxonum  "  we  already  find  it  expressed  with  the 
utmost  clearness ;  ^  in  the  age  of  the  Law  Books  it  was  still  full 
of  vitality ;  ^  and  rights  of  free  portion  were  finally  merged  in  it. 
It  applied  to  lands  only,  not  to  movables.  It  existed  in  favor  of 
the  next  heir  only,  not  in  favor  of  other  relatives;  the  former, 
however,  enjoyed  it  even  though  he  stood  in  no  community  of 
collective  hand  ("  Gemeinderverhiiltnis  ")  with  the  alienor,  and 
equally  without  regard  to  the  question  whether  or  not  he  was 
damaged  by  the  disposition  in  question.  It  applied,  moreover, 
only  to  alienations  inter  vivos  and  charges ;  aufl  not,  as  did 
rights  in  expectancy,  to  gifts  inter  vivos  and  mortis  causa. 
In  consequence  of  this  right  of  co-alienation  the  validity  of  a  con- 
veyance was  dependent  upon  the  consent  of  the  next  heir  ("Erben- 
laub  "),  and  the  effect  of  such  assent  was  to  bind  him  in  nowise 
to  impeach  the  transaction  so  approved. 

Only  in  this  way  could  an  alienation  be  made  unimpeachable. 
In  default  of  the  assent  of  the  heir  he  might,  within  a  year  and 

'  Brunner,  "OrundziiKe"  (oth  ed.),  240. 
2  "Lex  Saxonum",  CC.  (Y2-M. 

=•  Ssp.,  I,  .52,  §  1;  Goslar  "Statut.",  (S)  26,  (Z)  37-42  (Kraut,  §  70, 
n.  13). 

306 


Chap.  VI]  THE    LAW   OF   LAND  :     OWNERSHIP  [§  42 

day,  impeach  the  conveyance  as  void.  His  right  of  action  was 
based  on  the  idea  that  in  consequence  of  the  invahd  ahenation 
the  land  became  his  property  at  the  instant  of  such  ahenation, 
precisely  as  if  the  alienor  had  died  ;  wherefore  he  could  demand 
its  redelivery  even  from  third  persons.  In  other  words,  he  pos- 
sessed a  real  right  in  expectancy  ("  dingliches  Anwartschafts- 
recht  "),  which  was  transformed  by  the  unlawful  alienation  into 
ownership ;  or,  in  the  sense  of  the  medieval  sources,  into  an  ideal 
seisin  in  the  nature  of  a  herital  seisin  ("  Erbengewere  "). 

(3)  Weaker  Forms.  —  The  idea  embodied  in  rights  in  expectancy 
and  co-alienation,  —  namely,  that  property,  and  especially  landed 
property,  upon  which  depended  the  legal  status  of  a  family,  must 
if  possible  be  preserved  to  it  intact,  —  gradually  became  less 
prominent.  It  was  always  inconsistent  with  one  of  the  leading 
principles  of  the  Germanic  law  of  inheritance,  for  this  recognized 
no  right  of  primogeniture,  nor  any  other  rule  of  single  succession 
to  the  inheritance,  but  divided  this  among  heirs  of  like  degree 
(§  105  infra).  The  danger  here  involved  was  of  course  one  that 
did  not  affect  the  many  estates  subjected  to  tenurial  relations 
("  Leiherechte  ") ;  and  communities  of  collective  hand,  and  co- 
heir communities  continued  beyond  the  death  of  the  heritor 
{supra,  pp.  139  et  seq.),  were  also  able  to  maintain  themselves 
against  it  tlirough  many  generations.  It  was  by  no  means  every- 
where, however,  that  such  community  relationships  either  per- 
sisted or  were  organized.  And,  aside  from  this  consideration, 
the  interest  of  landowners  in  possessing  unlimited  dispositive 
power  over  their  property,  which  grew  with  the  rising  commercial 
value  of  land,  demanded  increasing  recognition,  and  broke  down 
more  and  more  the  old  restrictions.  In  the  systems  of  town  law 
it  was  only  inherited  lands  ("  Erbgut  "),  —  that  is,  land  whose 
ownership  was  acquired  by  inheritance,  —  that  remained,  gener- 
ally speaking,  subject  to  rights  of  co-alienation;  whereas  lands 
acquired  by  purchase  ('*  Kaufgut  ",  "  Gewinnland  ")  were  sub- 
ject to  the  free  disposition  of  their  owner.  But  although  in  some 
cities  (Liineburg,  Stade,  Bremen,  Hamburg,  Liibeck)  a  special 
law  long  existed  for  such  herital  lands,  the  principles  regulating 
their  disposition  were  by  no  means  uniform.  Neither  their  defini- 
tion and  extent  nor  the  number  of  heirs  entitled  to  claims  thereon, 
was  uniformly  regulated.  The  heirs  sometimes  possessed  a  revo- 
catory right  in  the  sense  of  the  older  right  of  co-alienation,  and 
sometimes  a  mere  right  of  preemption  ("  Vorkaufs-",  "  Xa- 
herrecht  ",  —  infra,  §  55).     In  the  Hansa  cities  the  conception  of 

307 


§  42]  THE    LAW    OF   THINGS  [BoOK   II 

herital-lands  was  totally  transformed  in  the  course  of  the  1500  s : 
the  owner  acquiring  full  dispositive  powers  "  inter  vivos  ",  al- 
though obliged  to  leave  to  the  next  heirs  the  undiminished  and 
total  \aluc  of  his  immovable  and  movable  property ;  the  right  of 
the  heirs  being  thus  transformed  into  a  limitation  upon  testa- 
mentary disposition  and  a  peculiar  right  of  obligatory  portions 
("  Pliiciitteile  "). 

In  all  other  regions  the  right  of  co-alienation  was  regularly 
weakened  in  the  same  manner  into  a  right  of  preemption.  In- 
deed, many  legal  systems,  possibly  under  the  influence  of  the 
Roman  law,  went  so  far  as  to  give  the  owner  a  right  to  deal  with 
his  property  with  entire  freedom.  In  the  regions  of  the  Swiss 
law,  for  example,  certain  metaphors  were  common  to  the  efi'ect 
that  "  one  might  tie  his  property  to  the  tail  of  a  dog  ",  or  "  hang 
it  on  a  wild  horse  ",  or  "  throw  it  in  the  brook." 

§  43.  Same.  —  (II)  Entailed  Family-estates  of  the  Greater 
Nobility.^  —  The  old  idea  of  a  "family"  estate  ("  Familiengut  ") 
retained  vitality  only  among  the  different  classes  of  the 
nobility.  To  some  extent  it  assumed  new  legal  forms.  The 
nobles  recognized  the  danger  to  their  position  of  social  and  politi- 
cal power  which  was  threatened,  particularly  from  the  second 
half  of  the  1200  s  onward,  by  the  partitions  of  family  possessions 
that  were  occurring  in  enormous  number  under  the  Germanic 
law  of  inheritance.  It  was  to  meet  this  danger  that  the  many 
contractual  co-heir  communities  were  established  of  which  we 
have  already  spoken  {supra,  pp.  142  ct  seq.).  But  "the  tend- 
encies of  legal  development  ran  increasingly  from  a  community 
to  an  individual  basis."  -  It  was  recognized  that  only  the 
development  of  a  fixed  law  of  primogeniture  could  arrest  the 
partition  of  family  estates. 

Such  a  fundamental  change  in  the  traditional  law,  involv- 
ing a  restraint  upon  landed  ownership,  only  the  greater 
nobles  were  able  to  attain  in  full  degree,  and  the  imperial 
knightage  in  lesser  measure.  By  virtue  of  the  autonomy  that 
had  been  preser\ed  to  them,  the  greater  nobility  created  for 
themselves,  either  through  dynastic  statutes  ("  Ilausgesetze  ") 
or  by  way  of  customary  practice,  a  special  law  for  tlie  entailed 

1  ZimwcHc,  "Das  doutsoho  Stammprutssystem"  (1887);  //.  SchuUze, 
"Erb-  unci  P"'amilienn'f'ht  dor  deutschen  Dynastien  dOs  Mittolalters" 
(1871);  Frnminhnld,  "Zur  Lehre  vom  Stammffut,  Familienfideikomiss 
und  Familien-Vorkaufsrec'hl",  in  " F\ists<'hrif t  fur  0.  Gierke"  (1911), 
59-88,  and  supplement  in  7?.  R.  «.,  XXXII  (1911),  337. 
*  Rosin,  essay  cited  below  in  Ihcring's  J.  B.,  XXXII  (1893),  336. 

308 


Chap.  \J]  THE    LAW    OF   LAND  :     OWNERSHIP  [§  43 

estates  of  their  class  which  was  governed  b}^  identical  rules  and 
was  everywhere  recognized  ;  so  that  what  had  formerly  been  recog- 
nized in  the  case  of  all  land  now  constituted  an  exceptional  law 
for  them  alone. ^  This  restraint  upon  landed  ownership  affected 
only  entailed  estates  ("  Stammgiitter  " ;  "  bona  aviatica  ", 
"  stemmatica  ") ;  side  by  side  with  which,  of  course,  there  might, 
and  very  frequently  did,  exist  free  allodial  property.  "  Stamm- 
giiter  "  are  family  holdings  inherited  from  ancient  times,  the  legal 
qualities  of  which  can  be  given  to  newly  acquired  land  only  by 
express  dedication,  unless  the  estate  has  already  been  in  the  family 
for  two  generations.  Such  entailed  estates  are  inalienable.  They 
are  inherited  agnatically,  and  since  singular  succession  has  been 
generally  introduced  they  remain  undivided,  in  accordance  with 
the  system  of  primogeniture.  No  disposition  whatever  can  be 
made  of  them  which  affects  their  substance,  or  involves  their  re- 
nunciation, or  changes  the  order  of  inheritance,  without  the  con- 
sent of  all  agnates.  In  case  of  unauthorized  conveyances,  the 
alienor  forfeits  his  rights  exactly  as  under  the  old  law  of  co-aliena- 
tion, and  the  members  of  the  family  who  are  entitled  to  rights  in 
expectancy  (not  merely  the  next  heir)  can  immediately  demand 
from  any  third  person  the  land  so  alienated,  by  means  of  a  revoca- 
tory action  ("  Revokationsklage  ")• 

The  question,  who  should  be  regarded  as  the  owner  of  en- 
tailed property,  considering  this  as  a  distinct  estate  ("Sonderver- 
mogen  "),  has  been  much  debated.  The  view  accepted  by  the 
majority  of  Germanists,  and  defended  in  particular  by  Beseler  - 
and  Gierke,^  is  that  the  family  of  the  greater  nobility  constitutes 
a  corporate  association  with  its  own  legal  personality,  and,  as 
such,  is  the  owner  of  the  property  of  the  house.  The  head  of  the 
house  at  any  moment  enjoys,  therefore,  merely  an  irrevocable 
individual  ("  Sonder-")  right  of  possession,  management,  and 
usufruct;  while  the  agnates,  as  members  of  the  " Korperschaft", 
also  possess  irrevocable  individual  rights,  in  the  form  of  rents 
or  appanages  ("  Apanagen  ",  "  Paragien  "),  to  a  share  in  the 
enjoyment  of  the  property.  Such  an  artificial  theory  (which 
Stobbe,  Heusler,  Cosack,  and  others  have  rejected)  seems,  how- 
ever, unnecessary.  Neither  is  it  permissible  to  draw  from  such 
expressions  as  "  house-property  ",  "  property  of  the  royal  house  ", 

'  Cosack  in  Gerber's  "System"  (17th  ed.),  135. 

2  "Die  Familie  dos  hohen  Adels  als  corporative  Genossenschaft",  in 
Grunhut's  Z.  Priv.  Off.  R.,  V  (1878),  540-550. 

^"Die  juristische  Personliehkeit  des  hochadligen  Hauses",  in  same, 
557  et  seq. 

309 


§  43]  THE    LAW    OF   THINGS  [BoOK    II 

and  the  like,  tlie  conclusion  that  the  house  is  an  independent 
holder  of  riglits ;  the  unlimited  partnership,  for  example,  also 
possesses  its  own  estate  without  being  a  juristic  person.^  Xor 
does  the  fact  that  the  houses  of  the  greater  nobility  have  created 
autonomously  their  special  law  of  entailed  and  household  ("Stamm- 
und  Haus-  ")  estates  lead  to  this  conclusion  (ffiipra,  pp.  97  ct  scq.)  ; 
for  it  makes  no  difference  whether  the  c^ualified  character  ("  Ge- 
bundenheit  ")  of  the  estates  rests  upon  autonomy,  —  i.e.  upon 
I)rivate  enactment,  —  or  upon  consensual  agreements  {i)ifra,  §  44). 
On  the  contrary,  it  is  more  in  accord  with  the  principle  of  restrict- 
ability  which  is  essential  to  the  Germanic  conception  of  ownership 
(supra,  pp.  239  ct  scq.)  to  attribute  to  the  head  of  the  house  the 
ownership  of  the  family  estate ;  although,  indeed,  an  ownership  re- 
stricted by  the  special  end  to  which  the  family  estate  is  apjx)inted, 
and  by  the  real  rights  in  expectancy  licld  by  the  agnate  menibers.- 
§  44.  Same.  —  (HI)  Family  Trust-entails  ("  fideiconnnissa  ").^ 
—  (1)  History.  —  The  lower  nobility  was  unable  to  secure 
for   itself   the   power   of   p^i^-ate  enactment  which  enabled  the 

1  Cosack  in  Gerher's  "System"  (17th  ed.),  136. 

2  Rehm,  "Die  juristisehe  Personlichkeit  der  standesherrlichen  Familie, 
Denkschrift  iin  Auftrage  des  Vereins  der  deutschen  Standesherren  ver- 
fasst",  no.  XI  (1911)  of  the  Seh.  Wis.  Ges.  Strassburg,  also  rejects  the 
theory  of  Gierke  and  Beseler  as  respects  the  older  period  ;  but  he  contends 
that  in  the  1800  s  there  was  developed  in  legal  practice  and  by  the  applica- 
tion to  the  high  noble  house  of  constitutional  conceptions  of  the  State, 
a  common  law  of  status  for  princely  liouses  to  the  effect  that  such  a  family 
of  noble  status  ("standesherrliche  Familie")  is  as  sueli  a  juristic  person, 
to  wliieh  belongs,  in  the  absence  of  other  provisions,  the  family  property 
("  Hausvermogen").  A  number  of  recent  dynastic  statutes  ("Haus- 
gesetze  ")  have  in  fact  laid  down  express  provisions  to  this  effect.  Whether 
the  analogy  mth  the  State  is  decisive  in  other  respects,  and  whether 
from  such  expressions  as  the  family-head  "represents"  the  dynasty,  he 
"exercises"  its  property  riglits,  etc.  a  conclusion  can  soundly  be  drawn  that 
the  dynasty  possesses  legal  personality,  still  appears  doubtful.  But  at 
any  rate  Kehm  shows  that  the  course  of  development  in  modern  times  has 
been  toward  the  development  of  the  juristic  personality  of  such  families, 
which  finds  expression  in  dynastic  statutes,  in  the  legislations  of  the  differ- 
ent States,  and  in  the  decisions  of  the  courts. 

•■'  Rosin,  "Beitrjige  zum  Recht  der  revokatorischen  Klage  bei  Familien- 
fideikommisscn  und  hochadeligen  Hausgiitern",  in  Ihcring's  J.  B.,  XXXII 
(1893),  333-409;  v.  Kcibnilz,  "Familienfideikommisse,  ihre  wirts<'liaft- 
lichen,  sozialen  und  politischen  Wirkungen"  (1908);  Gierke,  art.  "(!e- 
schichte  und  Recht  dor  Fideikommisse",  in  H.  W.  B.  der  Staatsw.,  Ill 
(3d  cd.,  1909),  1()4-11();  Conrad,  art.  "Die  volk.swirtschaftliche  und 
sozialpolitische  Bechnitung  der  Fideikommisse",  in  same,  110-124; 
Krause,  "Die  Familifn-Fideikommi.s.se  von  wirtschaftlichen,  legislatori- 
schen,  geschichtlichen  und  politischen  Gesichtspunkten"  (1909);  Sauticr, 
"Die  Familienfideikommisse  der  Stadt  und  Kepublik  Luzern",  no.  39 
(1909)  of  Gnn'ir'.s  "  Abhandlungen"  ;  Kmiscmvllcr,  "Zur  Kntstehung  der 
westfillischen  Fideikommisse"  (1909);  Rnmdohr.  "Das  Familienfideikom- 
miss  im  Gebiet  des  preussischen  allgemeinen  Landrechts"  (190!>) ;  Hvycrle, 
"Ein  Beitrag  zum  deutschen  Fideikommissrecht",  in  Ilicring's  J.  B., 
LVIII  (1911),  1-100;    Martin  Wolg,  art.  "Fideikommisse",  in  v.  Stengcl- 

310 


Chap.  VI]  THE   LAW   OF   LAND  :     OWNERSHIP  [§  44 

greater  nobility,  by  the  end  of  the  1300  s,  to  subject  family  estates 
to  statutory  restrictions ;  but  they  endeavored  to  accomplish  the 
same  ends  by  means  of  consensual  agreement  and  entails  ("  Stamm- 
gutsstiftungen  ").  Such  entails,  which  appeared  sporadically  in 
Germany  from  the  1000  s  onward  (there  are  evidences  of  them 
among  the  Anglo-Saxons  even  in  the  700  s),  and  whose  purpose 
was  to  keep  lands  inalienable  in  the  male  line  of  the  first  acquirer, 
first  became  widespread  in  the  1500  s,  and  especially  so  following 
the  Thirty  Years'  War.  By  that  time  they  were  recognized  as 
the  most  effective  means  of  guarding  the  maintenance  of  the 
"  splendor  familise  "  against  the  dangerous  principles  of  the  Ro- 
man law  of  inheritance.  The  example  of  the  Spanish  majorate, 
with  which  men  became  acquainted  in  this  same  period,  was 
also  of  some  influence ;  it  was  imitated  as  a  foreign  fashion.^  In- 
asmuch, however,  as  the  lower  nobility  could  not  rely  upon  auto- 
nomy, or  a  private  nobiliary  law  created  with  its  aid,  these  entails 
could  be  made  secure  only  by  bringing  them  within  one  of  the 
categories  of  the  Roman  law.  It  is  remarkable  that  in  Ger- 
many, as  elsewhere,  following  the  example  of  the  Spaniards  and 
Italians,  an  entail  theory  was  now  quite  generally  adopted  by 
jurists  schooled  in  the  Roman  system,  the  basis  of  which  was 
the  Roman  "fideicommissum  quod  familiae  relinquitur ",  not- 
withstanding that  this  was  a  totally  different  institute,  super- 
ficially combined  with  certain  ideas  of  the  feudal  law,  particularly 
that  of  a  "  successio  ex  pacto  et  providentia  maiorum."  The 
work  of  Phillipp  Knipschild,  sj^ndic  of  Essling :  "  Tractatus  de 
fideicommissis  familiarum  nobilium  "  ("  von  Stammgiitern  "  — 
1654),  was  epoch-making  in  this  connection,  determining  the 
entire  theory  down  into  modern  times.  In  this  form,  as  developed 
by  the  jurists  of  the  1600  s  (whence  it  is  known  as  "  Juristen- 
recht  ",  supra,  p.  31),  the  institute  of  family  "  fideicommissa  " 
passed  over  into  the  common  law.  It  was  adopted  also  in  the 
legislation  of  the  different  States,  although  these  generally  regu- 
lated it  in  closer  conformity  with  the  Germanic  law ;  this  was 
true  of  the  Bavarian  and  of  the  Prussian  "  Landrecht  ",  and  the 
Austrian  and  Baden  codes. 

Owing  to  political  and  economic  causes  the  institute  encountered 
in  the  modern  period  violent  opposition.     Repeatedly  it  seemed 

Fleischmann's  "Worterbuch",  I  (2d.  ed.,  1911),  780-783;    Noack,  "Ziir 
Entstehung  des  Adelsfideikommisscs  in  Unteritalien,  Eine  sozialgeschieht- 
liche  Untersuchung",  I,  no.  113  (1911)  of  Brentano  and  Lotz's  "Studien." 
^  Cosack  in  Gerber's  "System"  (17th  ed.),  138. 

311 


§  44]  THE    LAW    OF   THINGS  [BoOK   II 

destined,  in  Germany  as  elsewhere,  to  complete  decay.  In  the 
regions  to  the  west  of  the  Rhine  it  completely  disappeared 
during  the  supremacy  of  the  French  law,  after  having  been  earlier 
al)t)lislie(l  in  France  by  a  lUnolutionary  statute  of  1792  and  later 
by  the  Code  Civil.  The  French  example  was  soon  followed  in 
some  other  German  States,  e.g.  in  Bavaria  in  ISOS.  However, 
the  older  law  was  everywhere  reestablished  in  the  first  period  of 
reaction  following  1815 ;  in  the  Rhineland  by  a  cabinet  order  of 
February  25th,  1S2G.  On  the  other  hand,  the  institute  was 
attacked  with  augmented  violence  in  the  course  of  the  movement 
of  1848,  and  some  States  actually  abolished  it  in  toto,  in  accord 
with  the  principle  of  the  "German  fundamental  rights"  ("  Grund- 
rechte  ")  ;  most  notably  Prussia,  by  Art.  40  of  its  constitution. 
The  reaction  that  soon  set  in  anew  made  it  impossible  to  carry 
into  effect  these  provisions,  and  they  were  in  turn  rej^ealed  by 
special  statutes  (in  Prussia  by  one  of  July  5th,  1852).  Thus,  with 
the  sole  exceptions  of  the  Bavarian  Palatinate,  Alsace-Lorraine, 
Oldenburg,  and  Frankfort  o.  !M.,  the  institute  has  everywhere  been 
preserved  down  to  the  present  time ;  indeed,  in  very  recent  years 
it  has  been  applied  to  an  extent  extraordinarily  increased  as  com- 
pared with  earlier  periods,  despite  the  considerable  economic  losses 
resulting  therefrom  (particularly  the  displacement  of  small  peasant 
holdings),  which  become  ever  more  disastrously  apparent.^  The 
Civil  Code,  in  codifying  the  German  law,  not  only  abstained  from 
creating  a  systematic  law  of  fideicommissa,  but  did  not  even  touch 
the  institute.  On  the  contrary  it  declares  that  the  provisions  of 
State  law  concerning  family  fideicommissa  and  entailed  estates 
shall  remain  unaft'ected  by  the  Code  (EG,  §  59).  Since  the  enact- 
ment of  the  Civil  Code,  however,  the  law  of  "  fideicommissa  " 
has  been  subjected  to  revision  in  different  States  ;  most  thoroughly 
in  Saxony  by  an  Act  concerning  family  rights  in  expectancy  of 
July  7th,  1900,  and  in  Mecklenburg  by  ordinances  promulgating 
the  imperial  judicature  acts  and  the  Civil  Code.  In  Prussia, 
however,  the  intention  of  "  unifying  "  and  "  reforming  "  the 
hitherto  patchy  system  of  the  law  has  not  yet  been  realized  ;  a 
project  of  a  comprehensive  statute  upon  the  subject  was  sub- 
mitted to  the  Diet  in  1903,  but  was  afterward  withdrawn.-     In 

'  Compare  on  this,  for  example,  Max  Wehrr,  "  Aprrarstatistisehe  und 
sozialpolitisc'he  Betraehtunpen  zur  Fideikomtnissfrafje  in  I^eussen",  in 
An^h.  Soz.  W.  Soz.  P.,  XIX  (new  ser.  I,  1904),  .■)(«-.'374 ;  L.  Brentano, 
"F'amilienfideikommisse  unci  ihre  Wirkunpen"  (1011). 

2  C/.  Martin  WnljJ,  "Die  NeuKestaltung  des  Familienfideikommiss- 
rechts  in  Preussen"  (1904). 

312 


Ch.\p.  VL]  the  law  of  land:    ownership  |§  44 

Saxe-Coburg-Gotha  the  creation  of  new  family  fideicommissa 
and,  in  the  main,  the  extension  of  existing  ones,  was  prohibited 
by  the  statute  promulgating  the  Civil  Code.  The  Swiss  Civil 
Code  has  prohibited  their  creation,  but  has  permitted  entails  to 
meet  the  expenses  of  the  education,  establishment  (dowries,  etc.), 
or  maintenance  of  family  members,  or  for  other  similar  purposes 
(§  335). 

(2)  Legal  Principles.  —  (A)  Creation  of  fideicommissa.  —  A 
fideicommissum  is  created  by  a  declaration  of  the  donor's  will 
given  either  inter  vivos  or  mortis  causa.  This  declaration  is 
required  at  least  to  be  written ;  and  wherever  there  exists  a 
system  of  land  registry,  —  that  is,  at  the  present  day,  everywhere 
in  Germany,  —  it  acquires  effect  against  third  persons  only  by 
entry  in  the  Land  Book.  By  provisions  of  State  law,  official 
cooperation  is  frequently  required ;  not  merely  a  judicial  publica- 
tion or  confirmation,  but  also  the  assent  of  the  State  government. 
This  is  true  in  Prussia,  for  example,  in  the  case  of  fideicommissa 
yielding  a  net  income  in  excess  of  30,000  marks,  and  in  iMecklen- 
burg  in  the  case  of  all  family  fideicommissa  whatever.  Although 
the  fideicommissum  originated  as  an  institute  of  the  nobiliary  law, 
modern  statutes  have  generally  authorized  their  creation  by  any 
person.  In  the  Bavarian  law  alone  the  fideicommissum  is  still  a 
privilege  of  the  nobles,  since  according  to  it  fideicommissa  can 
only  be  created  by  nobles  and  for  the  benefit  of  noble  families. 
The  last  is  also  true  in  Baden  under  the  sixth  constitutional  edict 
of  1807.^ 

(B)  The  object  of  a  fideicommissutvi  can  only  be  a  permanent 
and  profit-yielding  thing,  —  in  other  words,  lands  and,  accord- 
ing to  the  law  in  some  States,  capital  secured  by  lands;  also, 
according  to  many  others,  other  corporeal  collective-things, 
such  as  jewels,  art  collections,  and  libraries.  Generally,  a  definite 
minimum  value  is  necessary ;  in  Prussia,  for  example,  a  net  in- 
come in  the  case  of  landed  estates  of  at  least  7,500  marks,  and  in 
the  case  of  pecuniary  fideicommissa  a  capital  investment  of  at 
least  30,000  marks. 

(C)  Ownership  and  real  rights  of  holders  of  future  in- 
terests ("  Anwiirter  ").  —  According  to  the  theory  of  fideicom- 
missa in  the  common  law,  the  temporary  possessor  of  the  estate  is  re- 
garded as  its  owner,  herein  agreeing  with  the  theory  of  entailed  and 
house-estates  of  the  greater  nobility ;  although  he  is  bound  by  the 
real  rights  of  those  entitled  in  expectancy  ("  Anwarter  ")  as  well 

'  Dorner  and  Seng,  "Badisches  Landesprivatrecht "  (190G),  407. 

313 


§  44)  THE    LAW    OF   THINGS  [BoOK   II 

as  by  the  special  end  to  which  tlie  estate  was  appointed.  The 
regional  systems,  on  the  other  hand,  generally  adopted  another 
viewpoint.  Some  of  them  assumed  a  collective  ownership  of  the 
occupant  and  the  holders  of  future  interests ;  others,  notably  the 
Prussian  and  the  Austrian,  ascribed  to  the  occupant  a  usufructuary 
or  "  subordinate  "  ("  Inter-  ")  ownership,  and  to  the  family,  as 
such,  a  "  superior  "  ownershij).  But  these  are  theories  which, 
where  they  are  not  expressly  recognized  by  statute,  may  be  dis- 
regarded, for  it  is  inconsistent  with  the  Germanic  law  to  recog- 
nize either  the  family,  whether  of  the  greater  nobility  or  any 
other,  as  a  corporate  association.  The  temporary  occupant  has 
the  right  to  possession,  management,  and  usufruct  under  every 
legal  system.  The  other  members  of  the  family  have  an  irrev- 
ocable real  right  in  expectancy,  which  is  manifested  particularly 
in  a  power  of  oversight,  and  of  cooi)eration  in  certain  juristic  acts, 
and  also  in  certain  privileges  of  individual  usufruct,  such  as  re- 
demptions ("  Abfindungen  "),  maintenance,  and  rents. 

(D)  Alif.xatiox  and  ciiakgino.  —  The  qualified  character  of 
an  estate  subject  to  a  fideicommissum  consists,  primarily,  in  its  in- 
alienability. A  conveyance  by  the  occupant  is  null.  Exactly  as 
under  the  old  law  of  co-alienation  and  entailed  estates,  he  thereby 
forfeits  his  own  right ;  the  holder  of  the  next  future  estate  is  im- 
mediately entitled  to  bring  an  action  to  revoke  the  conveyance. 
And  although  the  prevailing  practice  of  the  common  law  gives 
him  this  right  onh'  in  cases  of  dynastic  succession  ("  Sukzessions- 
fall  "),  this  must,  as  explained  by  Rosin,  be  regarded  as  incorrect. 

Not  only  the  conveyance  but  also  the  charging  of  the  substance 
of  an  estate  subject  to  a  fideicommissum  is  invalid.  This  in- 
validity, however,  can  ordinarily  be  established  by  a  holder  of  a 
future  interest  only  when  his  right  to  possession  has  accrued. 

Whoever  assents  to  alienations  or  charges  thereby  loses  his 
right  to  void  them.  But  according  to  the  common  law  such 
consent  binds  only  the  person  consenting,  not  his  heirs,  unless 
they  be  allodial  heirs  of  the  occupant  of  the  fideicommissum.  On 
the  other  hand,  the  regional  legal  systems  recognize  conveyances 
and  charges  made  with  tlic  assent  of  the  family.  In  Prussia  an 
effective  declaration  of  the  family  will  is  made  in  a  family-council 
("  Familienschluss  ")  which  constitutes  the  organ  of  the  holders 
of  future  interests  as  an  associational  group.  (Statutes  of  Febru- 
ary l.'3th  and  March  5th,  1855.)  Some  legal  systems  demand 
also  the  consent  of  a  curator,  and  confirmation  by  a  court  or  by 
the  State  government. 

314 


Chap.   M]  THE    LAW    OF   LAXD  :     OWNERSHIP  [§  44 

Under  all  legal  systems  certain  charges  are  permitted  as  so- 
called  fideicommissum  debts ;  they  are  treated  after  the  analogy 
of  feudal  obligations  ("  Lehnsschulden  " ;  infra,  §  48).  It  is 
only  as  to  these  that  successors  are  bound  ;  but  in  doubtful  cases 
only  with  the  fruits  of  the  estate,  —  whence  the  possibility  of 
so-called  income-hypothecs. 

(E)  Succession  under  fideicoaiiviissa. — A  fideicommissum 
is  inherited  according  to  the  principles  of  law  which  regulate  special 
succession  in  a  "  universitas  iuris  "  ("  Vermogensinbegriff  "). 
"  Each  holder  of  a  future  estate  succeeds  according  to  the  principle 
of  a  '  successio  ex  pacto  et  providentia  maiorum  '  under  a  right 
conferred  upon  him  directly  by  the  donor,  and  entirely  independ- 
ently of  his  predecessor  in  the  possession."  ^  The  right  of  one 
who  holds  a  future  estate  is  never  forfeited  by  an  act  of  his  ances- 
tors, nor  affected  by  their  incapacity.  The  descendants  of  the 
last  occupant  may  charge  themselves  with  the  fideicommissum, 
unlike  the  rule  of  feudal  succession  {infra,  §  48),  and  reject  an 
allodial  heritage.  In  doubtful  cases  {i.e.  in  the  absence  of  specific 
rules)  legitimate  descent  from  the  body  of  the  first  acquirer  of  the 
estate,  male  sex,  and  inclusion  in  the  agnatic  line  are  precondi- 
tions of  capacity  to  inherit.  The  donor  can,  however,  establish 
any  other  rules  at  will ;  for  example,  nobility,  ancestral  nobility, 
or  a  qualified  ancestral  nobility  (qualified,  that  is,  according  to 
the  provisions  of  the  entail,  "  stiftsmassig  "),-  or  descent  from  an 
equal  marriage.  He  may  even  omit  the  requirement  of  male  sex. 
The  order  of  succession  mav  itself  be  variously  appointed  {infra, 
§115). 

(F)  Termination.  —  A  fideicommissum  is  terminated,  aside 
from  the  destruction  of  its  object,  if  the  family  entitled  to  it 
becomes  extinct.  The  qualified  character  of  the  estate  then  ceases, 
"  ipso  facto  "  ;  it  becomes  the  allodial  ("  free  ")  property  of  the 
heirs  of  the  last  possessor.  The  donor,  however,  may  himself 
have  provided  for  such  a  contingency,  and,  in  particular,  may 
have  provided  for  some  particular  cognatic  succession  to  be 
observed  after  the  extinction  of  the  male  line.  According  to  most 
of  the  regional  legal  systems,  although  not  according  to  the  com- 

^  Gierke,  art.  cited  just  above,  111. 

2  Rauch,  "  StiftsmJlssigkeit  und  Stiftsfahigkeit  in  ihrer  begrifflichen 
Abgrenzuiif?,  ¥A\\  Reclitsgutachten,  zugleioh  ein  Beitrag  ziir  Geschiehte 
dos  deutsehen  Adelsreehts",  in  "Festschrift  fiir  H.  Brunuer"  (1911),  737- 
760:  Schreuer,  "  Stiftsmjissigkeit  und  Stiftsfahigkeit",  in  Arch.  B.  R., 
XXXVII  (1912),  1-77;  Frh.  v.  Dungern,  "Zur  Frage  der  Stiftsfahig- 
keit", in  Z.  Priv.  oflf.  R.,  XXXIX  (1912),  227-248. 

315 


§44] 


THE    LAW    OF   THINGS  [BoOK   II 


mon  law,  the  alienation  of  particular  parts  of  the  fideicommissum, 
as  well  as  the  destruction  of  the  whole,  is  possible  in  other  ways : 
according  to  the  Prussian  law  in  family  council;  and,  elsewhere, 
also  by  concurrent  declaration  of  the  existing  members  of  the 
family,'  with  the  assent  of  a  curator  and  subject  to  confirmation 
in  court  or  bv  the  government.  Finally,  any  particular  fidei- 
commissum,  or  the  entire  institute,  can  of  course  be  abolished 
by  statute. 


31G 


Chap.  \1I] 


THE   LAW    OF   LAND  :     REAL    RIGHTS 


[§45 


Chapter  VII 

THE    LAW   OF   LAND  (Concluded) 

Part  III.     Real  Rights 


Topic  I.    Tenurial  Rights 


§45. 


46. 


§47. 


48. 


§49. 


(B) 


Peasant  Tenures. 

I.    Tenures  in  General. 
II.    Tenancies   at    Will   and 
Benefices.         Tenures 
of  Higher  and   Lower 
Order. 

(1)  Precarious  tenancies. 

(2)  Benefices. 

III.  Free    and    Unfree    Ten- 
ures. 

IV.  Leaseholds  for  Years  and 

of  Inheritance. 
V.    The    Modern    Develop- 
ment. 

(1)  Eastern  Germany. 

(2)  The  rest  of  Germany. 
VI.   Modern    Agrarian    Leg- 
islation. 

Urban  Leaseholds. 
I.    The  Older  Law. 
II.    The    Modern    Develop- 
ment. 
The  Fief  :  the  Feudal  Law  of 
Medieval  Germany. 
I.    The  Feudal  System  gen- 
erally. 
II.    Specific  Principles  of  the 
German  Feudal  Law. 
The  Fief  :  the  Modern  Feudal 
Law. 
I.    The  Common  Law. 

(1)  Lombard  law. 

(2)  Variant  institutes. 
II.    Decay    of    the    Feudal 

Law. 

Topic  2.    Servitudes 

Servitudes  in  General. 
I.    The  Older  Law. 
II.    The  Modern  Law. 

(1)  Nature  of  servitudes 
(A)  Privileges        of 
markmen. 
Burdens      upon 
lands,     espe- 
cially      land 
charges. 

317 


(C)  Personal    servi- 
tudes. 

(2)  Creation     of     servi- 
tudes. 

(A)  By  juristic  act. 

(B)  By     acquisitive 
prescription. 

(C)  Statutory  servi- 
tudes. 

(3)  Termination. 
§  50.   Particular  Servitudes. 

I.   Pasture  Servitudes. 

(1)  Rights  of  pasture. 

(2)  Pasture      communi- 
ties. 

(3)  Rights  of  sheep-run 
and  of  faldage. 

(4)  Rights  of  drift. 
II.   Wood-botes. 

(1)  Rights     of     estover 
and  windfall. 

(2)  Rights  of  leafage  and 
Utter. 

(3)  Rights  of  mast. 

(4)  Rights  of  tar-boiling 
and  charcoal  burn- 


ing. 
III.    Water  Rights  and  Build- 
ing Servitudes. 


Topic  3.    Charges  on  L.ind 


§51. 


Land  Charges,  in  General. 
I.    Concept. 
II.    Historical  Development. 

(1)  Relations  of  depen- 

dence   under    the 
private  law. 

(2)  Obligations  of  a  pub- 

lic nature. 

(3)  The   cities   and    the 

"  Rentenkauf." 

(4)  From  the  1500  s  on- 

ward. 
III.    Nature  and  Content  of 
the  Land  Charge. 
(1)  The  older  theories. 
(A)  As    a    contract 
claim. 


§45] 


THE    LAW    OF   THINGS 


[Book  II 


(B)  As  an  institute 

of  the  law    of 
thin«;s. 

(C)  Eclectic      theo- 

ries. 
(2)  The  modern  theory. 
IV.    Creation. 

(1)  By  rule  of  law. 

(2)  By  juristic  act. 

(3)  By   acquisitive   pre- 

scription. 
V.    Conversion. 
VI.    Extinction. 

(1)  By  rule  of  law. 

(2)  By  juristic  act. 

(3)  B}^    extinctive    pre- 

scription. 

(4)  By    statutory    pro- 

vision. 
§  52.   Particular  Land  Charges. 

I.    Plow-work     and     other 

Manorial  Services. 
II.    Ground  Rent. 

III.  The  Tithe. 

(1)  "Decima    universa- 

lis"   and    "parti- 
cularis." 

(2)  "Decima  generalis" 

and  "specialis." 

(3)  "  Decima  praedialis  " 

and  "carnium." 

(4)  Greater    tithes    and 

lesser  tithes. 

IV.  Capital   Rent  and  Pur- 

chase-rent. 

Topic  4.     The  Pledge  of  Land 

§  53.    The  Older  Germanic  Law  of 
Land  Pledges. 
I.    Concept. 
II.    Early   Stages  of  Devel- 
opment.    Conditional 
Conveyances.     ^    The 
Proprietary    or*  Title 
Gage. 

III.  The    "Older"    Form   of 

Land-pledge,  or  Usu- 
fruct Gage. 

(1)  "Dead",  interest  or 

perpetual  gage. 

(2)  "Live"  gage. 

(3)  Forfeiture  gage. 

(4)  Sale  gage. 

IV.  The     Hypothec:         the 

"Younger"    Form    of 
Land-pledge,  or  Exe- 
cution Gage. 
§  54.    The    Modern    Law   of    Land 
Pledges. 

I.  The  Adoption  of  the 
Roman  Law  of 
Pledge. 

318 


II.    Return  to  the  Principles 
of  the  Germanic  Law. 

(1)  iModern       hypothe- 

carv  legislation. 

(2)  Chief    principles    of 

the  modern  law  of 
pledge. 

(A)  The  principle  of 

publicity. 

(B)  The  principle  of 

"specialty." 

(C)  The  principle  of 

legality. 

(D)  The  principle  of 

invariable 
priorities. 

(E)  IMmary     char- 

acter of 

pledge  rights. 

(F)  Judicial    execu- 

tion. 

(G)  NegotiabiHty. 

Hypothec 
deeds,     land- 
charge  deeds, 
negotiable 
and    security 
hypothecs. 

Topic  5.     PREiiMPTiON  Rights 

55.  Preemption  Rights  in  General. 

I.    Conception. 
II.    History. 

III.    Legal     Character     and 
Enforcement. 

(1)  Real  rights. 

(2)  Preconditions. 

(3)  Enforcement. 

(4)  Several   persons  en- 

titled. 

56.  Individual  Preemption 

Rights. 

I.    Statutory      Preemption 


Rights. 

(1)  The     heir's     prefer- 

ential right  of  pur- 
chase. 

(2)  Preemption      rights 

of      mark      asso- 
ciates. 

(3)  Preemption      rights 

based  on  vicinage 
and  on  association. 

(4)  Preemption      rights 

1)ased       on       co- 
ownersliip. 

(5)  Preemption      rights 

of    part    owners. 

(6)  Manorial       preemp- 

tion rights. 
II.   Preemption  Rights  based 
on  Contract  (options). 


Ch.\P.  VII]  THE    LAW    OF   LAXD  :     REAL    RIGHTS  [§  45 

Topic  1.     Tenurial  Rights  ("  Leiherechte  ") 

§  45.  Peasant  Tenures  ("  bauerliclie  Leihen ")}  (I)  Ten- 
ures ("Leihen")  in  general.  —  It  was  characteristic,  above  all  other 
things,  of  the  medieval  law  of  land  that  numerous  and  exceedingly 
various  tenurial  rights  existed  side  by  side  with  ownership.  They 
originated  in  the  Frankish  period,  and  their  growth  was  coincident 
with  the  rise  of  great  seigniorial  estates,  as  a  result  of  which  posses- 
sory relations  of  land,  which  must  be  assumed  to  have  been  orig- 
inally uniform,  were  more  and  more  altered.  Undoubtedly  a 
considerable  part  of  the  forms  of  landed  tenure  of  the  late  Roman 
law  was  borrowed  in  this  process.  But  not  only  were  these  much 
altered,  but  all  landed  tenure  acquired  a  far  greater  importance 
than  it  had  possessed  in  antiquity.  The  economic  and  social, 
indeed  the  entire  political  life  of  the  early  Middle  Ages,  was 
legally  embodied  in  relations  of  landed  tenure.  These  relations 
finally  led,  through  a  feudalization  of  constitutional  law,  to  a  com- 
plete disintegration  of  the  State;  but,  on  the  other  hand,  their 
wide  prevalence  was  followed  by  highly  beneficial  consequences 
of  an  economic  and  social  nature.  It  was  they  which  made  it 
possible  "  for  new  strata  of  the  population  to  attain  a  share, 
guaranteed  by  law,  in  the  produce  of  the  national  industry ;  that 
is,  above  all,  in  the  possession  of  land."  ^  And  thus  they  led  to  a 
"  division  of  ground  rents  "  which  made  impossible  the  appear- 
ance of  "  that  contrast  between  latifundia  and  pauperism  "  which 
was  so  fateful  through  a  long  part  of  antiquity.^ 

Although  sprung  from  a  common  root  and  dominated  by  the 
same  ideas,  tenurial  relationships  acquired,  in  the  course  of  their 

1  V.  Schwind,  "Zur  Entstehungsgesehiehte  der  freien  Erbleihen  in  den 
Rheingegenden  und  in  den  Gebieten  der  nordlichen  deutsehen  Kolonisa- 
tion",  no.  25  (1890)  of  Gierke's  " Untersuehungen"  ;  Wittich,  "Die  Grund- 
herrsehaft  in  Nordwestdoutsehland"  (1896);  Brunner,  "Der  Leihezwang 
in  der  deutsehen  Agrarueschichte"  (address,  1897);  Rittschel,  "Die  Ent- 
stehung  der  freien  Erbleilie,"  in  Z^.  R.  G..  XXII  (1901),  181-244;  7"/;. 
Knapp,  "Gesammelte  Beitrjige  zur  Rechts-  und  Wirtschaftsgesehichte 
vorneiamlich  des deutsehen Bauernstandes "  (1902)  ;  Secliger,  "Die  soziale 
und  ])olitisehe  Bedeutung  der  Grundherrsehaft  im  friiheren  Mittelalter, 
Untersuehungen  iiber  Hofreeht,  Immunitat  und  Landleihen",  K.  Siiehs. 
Gesell.  Wiss.,  "Abhandlungen",  XXTI.  (190-3);  Wopfner,  "BeitrJige  zur 
Geschichte  der  freien  biiuerliehen  Erbleihe  Deutsehtirols  im  Mittelalter", 
no.  ()7  (1903)  of  6'w'?7,(''.s  "Untersuehungen"  ;  "Freieund  unfreie  Leilien 
im  spittercn  MitteUilter",  in  Vj.  Soz.  W.  G.,  Ill  (1905),  1-20,  IV  (1906), 
190-194;  Opitz,  "Die  Arten  des  Rustikalbesitzes  und  die  Laudeinien 
und  Markgrosehen  in  Schlesien",  no.  73  (1904)  of  Gierke's  "Untersueh- 
ungen"; Ilartmann,  "  Bemerkungen  zur  italienischen  und  frjinkisehen 
Prekarie",  in  Vj.  Soz.  W.  G.,  IV  (1906),  340-348. 

2  Fratiken,  "Privatreeht ",  168. 

3  Brunner,  "Geschichte,"  I  (2d  ed.),  303. 

319 


§  45]  THE    LAW    OF   THINGS  [BoOK   II 

development,  a  varying  meaning  in  the  ease  of  different  classes 
of  the  population.  As  peasant  tenures,  urban  building-tenures, 
and  feudal  fiefs,  they  were  shaped  into  special  legal  institutes. 
These  three  types  of  tenure  we  will  now  consider  separately,  begin- 
ning with  rural  ("  liindliche  ")  tenure  and  its  development  into 
peasant  tenure. 

(II)  Tenancies  at  Will  and  Benefices.  Tenures  of  Higher 
and  Lower  Orders.  (1)  Precarious  Tenures.  —  The  development 
of  the  medieval  law  of  landed  tenure  ("  Bodenleihe  ")  north  of 
the  Alps  was  evidently  associated  with  the  "  precarium  "  of  the 
Roman  law,  which  existed  in  Gaul  from  the  earliest  times  side 
by  side  with  the  heritable  lease  and  leases  on  shares,  and  which 
had  been  specially  developed  by  the  Church.  It  is  true  that  in 
this  process  the  precarium  suffered  changes  "  which  approached 
a  complete  transformation  of  its  legal  nature  ",^  and  assimilated 
it  in  substance  to  the  usufruct  of  the  late  Roman  imperial  legis- 
lation (Leo,  Justinian).  The  Roman  "precarium"  was  origi- 
nally a  tenancy  at  the  will  of  the  lord  which  conferred  upon  the 
tenant  neither  a  real  nor  a  contractual  right.  It  was,  however, 
always  possible,  —  and  in  later  times  became  the  rule,  —  to  make 
the  tenancy  from  the  beginning  one  for  a  definite  period.  Indeed, 
it  was  customary,  following  the  analogy  of  the  Roman  lease  for 
years,  to  make  it  for  a  "  lustrum  "  (five  years).  True,  the  lessor 
was  not  thereby  bound  for  that  term ;  but  since,  as  a  matter  of 
fact,  he  did  not  often  exercise  his  right  of  revocation,  but  on 
the  contrary  often  renewed  the  lease  at  the  expiration  of  the  term, 
it  became  a  practice  of  the  customary  law  that  the  "  precario 
habens  "  possessed  a  right  of  usufruct  during  the  period  so  set, 
in  return  for  which  he  gave  to  the  "  precario  dans  "  a  certain 
rent  or  service,  and  which  he  forfeited  by  a  failure  to  render  such 
dues.  It  was  an  old  Roman  custom  that  the  "  precario  habens  " 
should  petition  in  writing  permission  to  occupy  the  land.  This 
petition  ("  epistola  precaria  ",  "  precaturia  ",  in  Italy  later  known 
as  a  "  libellus  ")  acquired  in  time  the  character  of  an  acknowledg- 
ment of  possession.  In  the  case  of  precaria  granted  for  a 
certain  time  and  irrevocable  during  such  period,  there  appeared 
along  with  it  a  document  which  was  prepared  by  the  lessor  such 
as  was  customary  in  ordinary  leases.  In  this  document  the  lessor 
formally  assured  the  tenant  in  his  rights ;  it  also  was  known  as 
"  precaria  ",  but  often,  as  distinguished  from  the  former  docu- 
ments, "  prtEstaria  ",  "  epistola  priestaturia  ",  "  commendatitia." 
'  Brunner,  "Geschiohte",  I  (2d  od.),  289. 
320 


Cn.\P.   VII]  THE    LAW    OF   LAXD  :     REAL    RIGHTS  [§  45 

Inasmuch  as  decisive  importance  was  laid,  in  the  Prankish 
Empire,  upon  the  visible  fact  that  a  petition  was  employed,  it 
was  possible  to  regard  as  precaria  all  those  leases  in  which 
such  a  document  was  made  use  of.  A  precarium  was  thence- 
forth any  tenancy  which  resulted  from  a  petition.  There  were 
thus  included  under  this  elastic  category  leaseholds  of  very  dif- 
ferent nature.  There  were  revocable  precaria,  —  tenancies 
at  will ;  precaria  granted  for  a  definite  period,  —  the  life  of 
the  tenant,  or  for  several  lives  (usually  three,  —  those  of  the 
tenant,  his  sons,  and  grandchildren) ;  and  heritable  precaria. 
The  corresponding  dues  imposed  upon  the  tenant  were  also  vari- 
ous ;  they  might  be  money  rents  or  rents  in  kind,  tithes,  or  plow- 
work  ("  Fronden  ")  and  other  services.  Under  some  circum- 
stances rents  were  very  low  and  intended  only  to  give  expression 
to  the  claims  of  the  lord  as  owner  ("  Rekognitionszinse  ",  nominal 
rents) ;  also  there  might  be  lacking  any  counter  payment  what- 
ever. The  estates  which  were  thus  let  in  tenancy  might  of  course 
be  of  very  different  extent ;  also,  they  might  retain  an  independent 
character,  or  they  might  be  a  part  of  the  economic  system  of  a 
manor.  In  the  latter  case  the  tenurial  relation  affected,  sooner 
or  later,  the  personal  position  of  the  tenant  (infra,  (III)).  In 
many  cases,  especially  in  the  case  of  such  tenancies  as  were  created 
by  ecclesiastical  foundations  ("  Anstalten  "),  lands  were  involved 
which  before  the  creation  of  the  tenancy  had  been  the  property 
of  the  tenant :  he  made  a  gift  of  the  land  to  the  church,  reserving 
to  himself  at  the  same  time  a  usufruct  for  life ;  by  means  of  a 
reconveyance  the  donor  acquired  a  tenancy  for  life  in  the  land,  the 
ownership  whereof  had  passed,  by  the  gift,  to  the  Church.  As 
distinguished  from  these  juristic  acts  which  have  been  known  since 
Albrecht's  time  as  "  precarire  oblatae  ",  there  was  involved  in 
so-called  "  precarise  datse  "  a  simple  lease  of  land  that  had  not 
before  been  included  in  the  property  of  the  tenant.  When  a 
person  gave  his  land  to  the  Church  in  order  to  receive  it  back 
immediately  along  with  other  lands  or  to  receive  in  return  other 
lands  alone,  as  a  leasehold  estate,  the  tenancy  was  known  as 
a  "  precaria  remuneratoria  " ;  which  resulted,  therefore,  from 
a  combination  of  "  precaria  oblata "  and  "  precaria  data."  ^ 
"  Precaria?  data?  "  became  less  prominent  in  time,  owing  to  the 
efforts  of  the  Church  ;  this  seems  to  be  the  explanation  of  the  fact 
that  in  the  800  s  the  expression  "  precaria  "  became  restricted  to 
"  precarise  oblatse "  and  "  remuneratorije."  Thenceforth  the 
'  Brunner,  "  Gesehichte  ",  I  (2d  ed.),  307. 
321 


§  45]  THE    LAW    OF   THINGS  [BoOK   II 

precarium  was  simply  a  tenancy  that  resulted  from  a  gift  of 
land  on  the  part  of  the  lessor  in  connection  with  a  precedent 
gift  of  land  on  the  part  of  the  tenant.  At  the  same  time  a  peti- 
tion ceased  to  be  an  essential  element  of  a  precarium. 

(2)  Benefices}  —  In  the  Frankish  period  the  precarium 
leasehold  was  designated,  in  accord  with  the  usual  terminology 
of  the  late  Roman  period,  the  "  beneficium  "  of  the  lessor ;  and 
this  word  was  used,  the  same  as  the  word  "  precaria  ",  to  desig- 
nate both  the  relation  of  tenancy  and  the  land  held  in  tenancy. 
"  Beneficium  "  and  "  precaria  "  were  therefore,  originally,  ex- 
pressions of  identical  meaning ;  although  the  word  "  beneficium  " 
had  from  the  beginning  a  wider  api)lication.  It  was  not  merely 
employed  to  designate  all  tenancies,  including  those  which  were 
not  precarious,  but  was  extended  also  beyond  the  field  of  lease- 
holds generally,  and  could,  for  example,  be  employed  to  designate 
the  transfer  of  ownership  in  land  :  notably,  the  land  grants  of 
the  Frankish  kings  were  included  under  the  category  of  the  "  bene- 
ficium." For,  although  a  restricted  ownership  was  created  by 
them  in  the  donee  so  long  as  only  crown  land  was  involved,  the 
donee,  from  the  time  that  the  Frankish  rulers  began  to  lease  con- 
fiscated church  lands  to  magnates  of  the  kingdom  for  military 
purposes,  acquired  what  was  essentially  a  right  of  tenancy,  be- 
cause of  the  inalienability  which  was  a  fundamental  quality  of 
lands  belonging  to  the  church.  Such  gifts  of  ecclesiastical  lands, 
made  by  Charles  IMartel  and  his  successors,  were  originally  known 
as  "  precariae  verbo  regis  ",  "  verbo  dominico."  The  later  and 
more  limited  conception  of  the  precarium  could  not  be  applied 
to  such  grants,  because  these  never  followed  a  precedent  gift  or 
service  on  the  part  of  the  tenant. 

In  time,  however,  even  the  wide  meaning  of  the  word  "  bene- 
ficium "  was  also  narrowed.  ]\Ien  began  to  distinguish  classes 
of  higher  and  lower  tenure,  with  reference  to  the  purpose  of  the 
tenancy  and  the  nature  of  the  services  imposed  upon  the  tenant. 
Only  those  which,  in  consequence  of  the  greater  extent  of  the  land 
held  in  tenancy,  involved  no  economic  dependence  of  the  tenant 
upon  a  seigniorial  demesne,  —  even  though  they  might  be  charged 
with  rents  in  favor  of  such,  —  and  i)articularly  those  which  from 
the  end  of  the  Frankish  period  permitted  or  required  military 
service  from  the  liegeman  ("  vassal  tenures  "),  were  thenceforth 

' /C.  Lchmnnn,  art.  "Beneficium"  in  IIoop'x  "  Roalloxikon ",  I,  245. 
Compare  also  Dopsch,  "Die  Wirtscbaftsentwicklung  dor  Karolingerzeit ", 
I  (1912),  205  et  seq. 

322 


Chap.  MI]  THE    LAW    OF   LAND  :     REAL    RIGHTS  [§  45 

regarded  as  "  beneficia."  With  these  there  were  contrasted, 
as  "  lower  "  tenures,  those  which  obligated  villeins  ("  Hintersas- 
sen  ")  to  labor  services  upon  the  demesne  and  to  the  payment  of 
rents  and  tributes  of  a  rustic  ("  biiuerliche  ")  character. 

(Ill)  Free  and  Unfree  Tenures.  —  We  have  already  adverted 
to  the  fact  that  lands  given  in  tenancy  were  sometimes  drawn 
within  the  economic  system  of  a  manor,  and  sometimes  not. 
The  former  class  constituted,  along  with  the  demesne,  a  solidary 
complex  of  estates  ("  Gutsverband  ") ;  for  such  manorial  vil- 
leins ("  Hufenbauer  ")  the  lord's  demesne  ("  Fronhof  ")  was 
the  centre  of  economic  and  social  life.  Over  them  stood  a  bailiff 
or  other  manorial  official  ("  Fronhofsbeamte  ") ;  they  were  all 
united  in  an  association,  the  legal  incidents  of  which  were  deter- 
mined by  manorial  law.  Those  holdings  ("  Leihegiiter  "),  on 
the  other  hand,  which  were  not  thus  drawn  within  the  manorial 
system,  stood  in  no  intimate  relation  with  a  lord's  demesne,  not- 
withstanding that  the  tenants  thereof  might  render  rents  to  a 
land-lord  ("  Leiheherr "),  or  even  be  obligated  also  to  render 
labor  services  upon  his  land.  In  particular,  such  tenants  were 
in  nowise  dependent  upon  a  lord  or  his  officials.  Foremost  among 
tenures  of  this  second  class  were  the  precaria.  They  were  free 
tenancies;  and  this  for  the  reason  that  the  lessor  ("  Leiheherr  ") 
and  tenant  were  regarded,  as  respects  the  relation  of  tenancy 
between  them,  as  parties  equal  in  rights  and  subjected  in  common 
to  the  general  law  of  the  land,  such  tenancies  being  included  within 
the  jurisdiction  of  the  county  ("  Grafen-  ")  court.  The  personal 
status  of  the  tenants  remamed  unimportant  in  this  connection ; 
even  those  personally  unfree  could  receive  precaria  and  be  settled 
under  free  tenancies  upon  the  land.  Compared  with  these  those 
other  tenures  by  which  land  subject  to  the  direct  usufruct  of  the 
lord  (the  demesne)  was  let  to  villeins  ("  Hintersassen  ")  were 
unfree  tenures,  for  they  were  subject  to  the  manorial  law,  that  is 
to  the  law  of  tenancies  within  the  manor  that  was  administered 
in  the  manorial  court  of  the  landlord  {supra,  p.  4).  Here  too  the 
personal  status  of  the  tenant  was  not  at  first  regarded,  for  the 
manorial  law  was  originally  no  law  of  status  for  manorial  serfs 
("  Hofhorige  ").  In  consequence,  however,  of  the  tendency  of 
the  law,  already  referred  to,  to  assimilate  even  personal  relations 
to  things,  there  took  place  at  the  height  of  the  INIiddle  Ages  a  pro- 
jection of  villeinage  upon  such  dependent  tenements.  The  conse- 
quence of  this  was  that  thenceforth  every  person  who  acquired 
lands  within  the  manor  ordinarily  became  thereby  a  serf  ("  Hori- 

323 


§  45]  THE    LAW    OF   THINGS  [BoOK    II 

ger  ")  of  the  land-lord,  and  also  became  subject  to  the  manorial 
law.  And  therefore  manorial  tenures  finally  came  to  be  unfree 
not  only  because  they  were  subject  to  the  jurisdiction  of  the 
manorial  court  and  not  to  that  of  the  ordinary  courts  of  the  land, 
but  also  because  they  usually  involved,  although  not  always, 
the  unfreedom  of  the  tenant,  —  his  personal  dependence,  and  his 
dependence  in  private  law.  In  the  earlier  part  of  the  Middle  Ages 
it  was  customary,  upon  the  greater  manors,  to  group  together 
a  number  of  dependent  virgatcs  ("  Ilufen  ")  as  an  economic  un'.t 
("  ^'illikation  ",  villa)  and  place  them  under  a  special  manorial 
official,  the  "  villicus  "  or  bailiff  ("  Meier  ",  "  maior  "),  who  was 
charged  with  their  administration.  Later  it  was  not  uncommon 
for  the  bailiff  to  lease  the  entire  villa  from  the  lord. 

(IV)  Leaseholds  for  Years  and  of  Inheritance.  —  jNIost  manorial 
tenements  were  let,  from  the  beginning,  to  serfs  or  unfree  per- 
sons who  lacked  the  right  of  free  domicile,  being  bound  to 
the  glebe.  The  practice  therefore  naturally  became  established, 
as  to  such  tenements,  that  the  lords,  —  who  as  knights  felt  a 
pressing  necessity  for  the  labor  of  villeins,  —  should  grant  vacant 
peasant  holdings  to  the  able-bodied  descendants  of  the  dead  ten- 
ants. This  practice  gradually  found  legal  recognition,  at  least 
under  the  manorial  law ;  and  there  thus  originated  a  legal  claim 
on  the  part  of  the  tenant  to  the  inheritance  of  such  manorial 
lands. 

Even  earlier,  before  unfree  tenancies,  generally  speaking,  ac- 
quired a  heritable  character,  this  was  acquired  by  the  free  tene- 
ments. These  free  leaseholds  of  inheritance,  such  as  attained 
witlespread  occurrence  from  the  1100  s  onward  in  rural  regions 
and  especially  in  the  cities,  and  which  greatly  checked  the  growth 
of  manorial  tenures,  originated  in  the  Prankish  precaria,  —  that 
is,  in  tenancies  which  had  been  free  from  the  beginning,  —  and 
not  in  earlier  manorial  tenancies.  The  precaria  were  for  the  most 
part  leaseholds  for  life  ("  Vitalleihen  ")  ;  but  at  an  early  date 
they  showed  a  tendency  to  become  heritable.  In  the  case  of 
"  precarise  oblatae  ",  which  were  by  far  the  most  numerous,  it 
was  customary  for  the  donor,  for  example,  to  reserve  a  usufruct 
not  only  to  himself  but  also  to  his  wife,  and  even  more  frequently 
to  his  children.  If  in  such  cases  the  second  or  even  the  third 
generation  were  made  grantees  along  with  the  donor,  it  was  a 
natural  step,  upon  the  death  of  the  lessee,  to  grant  the  escheated 
lands  to  his  next  heir;  and,  still  later,  to  extend  the  tenancy 
from  the  beginning  to  the  next  heir,  and  finally  to  all  the  heirs 

324 


Ch.vp.   VII]  THE    LAW   OF   LAND  :     REAL    RIGHTS  [§  45 

in  perpetuity,  of  the  tenant.  These  heritable  tenancies,  developed 
from  the  precarium,  served  as  models  for  the  free  leaseholds  of 
inheritance  that  were  newly  introduced  in  the  1100  s  and  1200  s. 
Their  extension  to  rural  districts  was  favored  by  various  circum- 
stances. 

Just  as  it  was  earlier  customary  to  make  leases  of  freshly  cleared 
woodlands  in  return  for  a  heritable  rent,  in  order  to  have  them 
cleared  ("  Waldhufen  ",  assart- virgate),  so  a  free  tenancy  of 
inheritance,  —  known  as  "  Griinderleihe  ",  "  colonial-tenure  ",  — 
was  the  favored  form  in  which  the  colonization  of  Eastern  Ger- 
many was  realized.  The  German  colonists  were  granted  heri- 
table holdings  as  freemen  by  the  founders  of  marks  or  villages, 
and,  aside  from  a  nominal  rent  paid  to  the  owner  of  the  land  {i.e. 
to  the  Territorial  princes  or  to  ecclesiastical  or  secular  magnates) 
in  recognition  of  their  title,  were  subject  only  to  public  taxes 
and  services  which  left  entirely  unaffected  their  personal  status. 
The  favorable  situation  of  these  colonists  in  Eastern  Germany 
reacted  in  turn  upon  the  position  of  the  peasant  population  in 
the  older  parts  of  Germany,  and  caused  a  recedence  of  manorial 
types  of  tenancy.  To  this  end  the  decay  of  the  manorial  organi- 
zation also  contributed.  It  is  true,  however,  that  heritable 
leaseholds  did  not  everywhere  take  the  place  at  once  of  the  older 
free  tenancies ;  .for  example,  this  was  not  the  case  in  Northwestern 
Germany. 

In  Lower  Saxony  the  manorial  lords  broke  up  the  villas  ("  Vil- 
likationen  ")  upon  their  manors,  because,  with  agriculture  becom- 
ing increasingly  productive  while  the  old  manorial  charges  re- 
mained unaltered,  they  were  advantageous  only  to  the  peasants, 
and  no  longer  sufficiently  so  to  the  lords.  The  villeins  of  the 
manorial  demesnes  were  therefore  freed ;  a  number,  usually 
four,  of  the  older  virgates  ("  Lathufen  ")  were  united  into  a  larger 
peasant  holding;  and  this  was  then  leased  to  one  of  the  four 
tenants,  while  the  three  others  either  remained  upon  the  land  as 
cottagers  or  cotters  ("  Koter  ",  "  Kossiite  ")  upon  little  house- 
plots,  or  emigrated  to  the  cities  or  to  regions  under  colonization. 
Such  peasants,  who  were  thus  provided  with  new  and  larger 
holdings,  received  them  in  the  beginning  as  leaseholds  for  years 
after  the  manner  of  the  tenancies  that  had  formerly  been  cus- 
tomary with  the  bailiff-lessee  of  the  manor  ("  zu  IMeierrecht  "). 
Along  with  a  betterment  in  the  personal  position  of  the  tenant  at 
law,  there  was  therefore  here  involved  a  weakening  of  the  real 
right. 

325 


§  45]  THE    LAW    OF   THINGS  [BoOK   II 

There  were  thus  developed  in  Germany,  durinc;  the  IMiddle 
Ages,  as  in  the  other  countries  of  Europe,  many  forms  of  peasant 
tenure  which  continued  to  exist  for  a  long  time  beside  one  another. 
Along  with  shorter  or  longer  leaseholds  for  years,  —  such  as  per- 
sisted, for  example,  until  after  the  Middle  Ages  in  tlie  Hessian 
colonial-tenures  ("  Landsiedelleihen  "),  in  tenancies  of  marl- 
right  ("zu  Mergelrecht"),  and  in  the  older  bailiff  system  ("  ]\Ieier- 
recht  "),  — and  along  with  the  unfree  tenures  subject  to  manorial 
law,  there  existed  heritable  leaseholds  that  assured  to  the  tenants, 
through  generations,  the  full  economic  produce  of  the  land,  and 
did  not  affect  their  freedom.  On  the  whole,  the  development 
down  to  about  the  1300  s  was  characterized  by  a  growing  better- 
ment in  the  legal  status  of  the  tenant ;  that  is  by  a  strengthening 
of  liis  real  rights.  For  all  leaseholds  conferred  upon  the  tenant 
a  real  right  in  the  land,  a  leasehold  seisin  ("  Leihegewere  ")  based 
upon  an  investiture  realized  in  accord  either  with  the  manorial  or 
the  general  Territorial  law.  The  proprietary  seisin  ("  Eigenge- 
were  ")  of  the  feudal  lord,  on  the  other  hand,  was  manifested  in  a 
right  to  certain  dues  (money  rents,  reliefs,  fines  for  alienations, 
etc.)  and  services,  which  in  consequence  of  the  projection  of  most 
tenements  upon  the  land  acquired  the  character  of  real  charges 
{infra,  §  51) ;  in  the  right  of  escheat  in  case  of  failure  to  render 
rents  or  services,  often  also  in  case  of  bad  management ;  and  in 
the  requirement  of  the  lord's  assent  to  alienations. 

(V)  The  Modem  Development.  —  (1)  In  Eastern  Germany. — 
In  a  great  part  of  Germany,  especially  in  the  colonized  regions, 
there  became  evident  as  early  as  the  1300  s  a  reactionary  move- 
ment, which  was  strengthened  by  the  Reception.  From  the 
beginning,  knights  were  settled,  along  with  peasants,  upon  the 
lands  conquered  from  the  Slavs ;  and  they  were  granted  feudal 
estates  ("  Rittergiiter  ")  as  a  reward  for  military  services  (which 
they  alone  rendered)  by  the  land-lords,  by  the  Territorial  princes, 
or  by  their  greater  vassals.  These  feudal  holdings,  which  were 
at  first  of  slight  extent  and  therefore  cultivable  ])y  the  personal 
followers  of  the  knights,  were  situated  in  the  midst  of  the  peasant 
holdings ;  the  knights  were  originally  simply  neighbors  of  the 
peasants,  anfl  possessed  no  seigniorial  privileges  whatever  over 
the  peasant  land.  The  Territorial  rulers,  however,  in  consequence 
of  their  increasing  political  impotence  and  financial  necessities, 
graflually  and  in  increasing  measure  ceded  all  their  rights  of  sov- 
ereignty to  the  holders  of  these  feudal  estates,  who  played  the 
leading  role  in  the  Territorial  Diets.     At  the  same  time  the  knights 

326 


Chap.  VII]  THE   LAW   OF   LAND  :     REAL   RIGHTS  [§  45 

found  it  possible,  either  by  way  of  law  or  of  force,  to  extend  and 
unify  their  holdings,  originally  scattered  among  the  virgates  of 
the  peasants,  at  the  expense  of  the  latter.  In  this  manner  there 
resulted  a  fusion  of  land-lordship,  jurisdictional  powers,  and  feudal 
possessions,  out  of  which  sprang  the  "  Rittergut  "  of  Eastern 
Germany :  a  solidary  seigniory  in  which  the  lord  of  the  land  was 
sovereign  in  place  of  the  State,  and  whose  inhabitants  became 
his  private  subjects.  The  more  the  nobility  were  forced  into 
agriculture  as  a  calling,  in  consequence  of  the  appearance  of  mer- 
cenary armies  and  of  a  class  of  learned  civil  officials,  the  greater 
was  their  endeavor  to  enlarge  their  demesne  ("  Gutsland  ")  at 
the  expense  of  the  peasant  holdings.  For  this  reason  the  holders 
of  such  seigniories  strove  to  do  away  with  the  traditional  relations 
of  heritable  tenure  that  stood  in  the  way  of  their  designs,  in  order 
to  worsen  the  conditions  imposed  in  new  leases,  and  thus  weaken 
the  possessory  rights  of  the  peasants ;  to  increase  the  services 
imposed  upon  these ;  and  thus  to  acquire  the  labor  necessary  for 
the  working  of  their  enlarged  estates.  To  all  this  was  added 
the  fact  that  the  nobles,  by  abolishing  these  heritable  leaseholds 
freed  themselves  at  the  same  time  from  the  obligation  to  re-lease 
them  ;  and  so  managed  to  effect  in  ever  increasing  measure,  espe- 
cially after  the  havoc  of  the  Thirty  Years'  War,  what  was  known 
as  "  Bauernlegen "  (evictions) ;  that  is,  they  confiscated  the 
peasant  land  in  order  to  enjoy  the  direct  usufruct  thereof  and  to 
work  it  by  dependent  labor.  In  this  connection  the  reception 
of  the  Roman  law  was  to  some  extent  detrimental  to  the  peasants  ;  ^ 
because  the  jurists  did  not  understand  the  complicated  types  of 
peasant  tenure  in  the  German  law,  and  preferred  to  classify  them 
under  the  Roman  category  of  leases  for  years,  which  did  not  recog- 
nize a  real  right  in  the  lessee.  In  these  regions,  therefore,  not 
only  did  the  one-time  free  peasant  population  sink  to  personal 
unfreedom,  but  the  peasant  holdings  were  absorbed  in  increasing 
measure  by  the  seigniories,  in  consequence  of  the  abolition  of  the 
old  forms  of  tenancy.  This  calamitous  development  was  attacked 
with  energy  in  the  1700  s  by  the  government  in  most  of  the  greater 
Territories.  The  extinction  by  anyone  of  peasant  or  cotter 
holdings  was  prohibited  throughout  the  kingdom  of  Prussia  by  an 
edict  of  Frederick  the  Great  of  August  12th,  1749, — following 
repeated  earlier  efforts  toward  the  same  end,  particularly  by 
Frederick  William  I ;  and  the  Prussian  "  Landrecht  ",  —  directly 

1  This  view  is  disputed  by  S.  B.  Fay,  "  The  Roman  Law  and  the  German 
Peasant",  Amer.  Hist.  R.,  XVI  (1911),  234-254. 

327 


§  45]  THE   LAW   OF  THINGS  [Book   II 

attacking  the  result  of  the  historical  development,  —  i)rovided 
that  the  number  of  peasant  holdings  should  neither  be  diminished 
by  eviction  nor  by  joinder,  and  that  landlords  should  care  for  the 
due  tenancy  of  existing  village  holdings  ("  Stellen  und  Xahrun- 
gen  ").  This  new  compulsory  leasehold  tenure,  originating  in  a 
])rinciple  of  public  police  (which  is  reminiscent  of  the  compulsory 
lease  of  offices  in  the  medieval  administrative  system)  '  did  not 
protect  the  peasant  but  the  peasant  land.  It  forbade  the  land- 
lord to  take  land  for  his  individual  usufruct,  thereby  restricting 
in  considerable  measure  his  ownership,  if  measuretl  by  the  concept 
of  ownership  then  prevalent  in  the  common  law,  transforming 
it  into  a  sort  of  "  superior  "  ("  Ober-")  ownership.  These  meas- 
ures of  the  Prussian  Crown  had  such  great  significance  because 
they  effectually  checked  what  was  perhaps  the  strongest  force 
tending  to  evictions  of  the  peasantry,  namely,  the  technical  im- 
provement in  the  cultivation  of  great  seigniorial  estates  that  began 
about  the  middle  of  the  1700  s.  They  prevented  any  such  decisive 
destruction  of  the  peasant  class  as  took  place  at  that  time  in 
Holstein,  Mecklenburg,  and  Swedish  Pomerania,  —  oligarchies 
where  "  the  peasant  holdings  melted  together  like  snow  before  a 
springday  sun."  ^ 

According  to  the  varying  outcome  of  the  conflict  between  the 
various  inconsistent  interests,  the  possessory  and  leasehold  rights 
of  the  peasants  in  Eastern  Germany  assumed  various  forms. 

In  a  few  regions  the  view  attained  predominance  that  the  peas- 
ant possessed  a  usufructuary  or  "  subordinate  "  ownership  in 
the  soil. 

More  frequently  the  rights  to  heritable  rents  ("  Erbzinsrecht  ") 
which  had  earlier  existed,  in  the  colonization  period,  were  trans- 
formed into  so-called  heritable  "  Lassbesitz  "  (tenancy  by  suf- 
ferance). This  relation  was  akin  to  the  older  "rental-lease" 
("  Zinsleihe  ") ;  but  unlike  that,  it  obligated  the  tenants  ("  Las- 
siten  "))  not  to  the  pa\Tnent  of  rents,  but  to  considerable 
labor  services  which  the  lord  found  necessary  in  the  exploita- 
tion of  his  great  estate.  Such  an  estate  was  solidary  ("geschlos- 
sen"),  as  the  interests  of  the  lord  required  ;  that  is,  it  could  not 
be  divided,  but  must  pass  to  a  single  heir, — for  the  most  part 
only  the  nearest  relatives  had  rights  of  inheritance. 

Most  widespread  of  all  was  the  non-heritable  "  Lassgut." 
After  the  Thirty  Years'  War,  especially,  most  holdings  were  re- 

1  Brunner,  "  Leihczwang  ",  XVII. 

*  Th.  Knapp,  "Gesammelte  Beitriige",  375. 

328 


Ch.\p.  YLI]  the  law  of  land  :    real  rights  [§  45 

tenanted  in  this  manner  exclusively.  The  "  Lassit  "  (villein) 
had  either  a  non-heritable  right  of  usufruct  for  life,  —  which  in 
fact  was  usually  inherited,  —  or  a  revocable  usufructuary  right, 
terminable  at  any  moment. 

Finally  there  also  existed  peasant  leases  for  years. 

The  effect  of  all  these  tenancies  was  to  make  the  peasant  depend- 
ent by  birth  and  to  bind  him  to  the  glebe ;  to  subject  him,  not 
only  personally  but  also  "  dinglich  ",  that  is  as  a  result  of  his  rela- 
tion to  the  land,  to  the  lordship  of  the  landowner.  In  the  case 
of  all  of  them,  of  course,  he  was  deprived  of  any  power  of  disposi- 
tion over  the  land  upon  which  he  was  settled ;  such  a  "  Lassgut  " 
(villein)  estate,  so  long  as  it  was  not  absorbed  in  the  lord's 
demesne,  constituted  a  solidary  aggregate  of  incorporeal  property 
rights  ("  Vermogensinbegriff ")  which  the  peasant  could  not 
partition. 

(2)  In  the  Rest  of  Germany.  —  In  Lower  Saxony,  that  is  in 
Northwestern  Germany,  the  most  common  form  of  tenancy  was 
the  fee-farm  lease  made  to  bailiffs  (a  lease  "  zu  Meierrecht  "). 
It  was  transformed  by  the  legislation  of  the  1500  s  and  1600  s 
from  a  lease  for  years,  which  it  had  originally  been,  into  a  heritable 
right  to  the  usufruct  of  another's  land  subject  to  the  obligation 
to  manage  the  same  with  proper  regard  to  the  economic  conditions 
of  the  peasantry,  and  to  render  therefrom  certain  annual  dues,  — 
usually  a  "  Meierzins  "  (fee-farm-rent),  a  low  rent  which  was  a 
real  charge  upon  the  estate.  The  bailiff  had  no  ownership  except 
in  the  buildings  and  the  stock  of  the  estate.  Since  the  right  of 
usufruct  was  conditioned  upon  competent  management,  personal 
incompetence  entitled  the  lord  to  cancel  the  lease  ('' Abmeierung") ; 
and  sales  to,  as  well  as  inheritance  by,  inefficient  landlords  were 
forbidden.  This  led  to  the  development  of  two  special  legal 
institutes,  the  "  interim-farm  "  ("  interim-management  ",  "  In- 
terimswirtschaft  ")  and  the  "  parent's  portion  "  ("  Altenteil  "). 
During  the  minority  of  the  next  heir  an  interim  manager  was 
appointed,  who  was  charged  with  the  administration  of  the  estate 
during  the  so-called  years  of  wardship  ("  Mai-",  "  Meier-",  or 
"  Regierjahre  ").  This  manager  was  ordinarily  the  second  hus- 
band of  the  bailiff's  widow.  His  management  was  based  upon 
a  special  and  independent  real  right.  After  the  expiration  of  the 
heir's  period  of  wardship,  the  manager  was  bound  to  deliver  to 
him  the  land,  thereupon  receiving,  by  virtue  of  such  real  right, 
exactly  as  did  the  possessor  of  a  peasant  holding  who  renounced 
it  on  account  of  age,  the  so-called  parent's  portion,  which  was  a 

329 


§  45]  THE   LAW   OF   THINGS  [Book   II 

right  for  life  to  maintenance,  —  i.e.  to  a  free  dwelling  and  certain 
natural  products  ("  Xaturalreichnisse  "). 

Such  a  fec-farm  ("  Meiergut  ")  could  not  be  charged  by  the 
bailiff  nor  reclaimed  by  the  lord  ;  and  for  the  one  as  ft)r  the  other 
it  was  impartible.  A  bailiff-holding  also,  like  the  heritable 
"  lassitic  "  holdings  ("  Lassgiiter  ")  of  the  East,  constituted  a 
solidary  estate ;  and  this  solidarity,  which  was  strictly  enforced 
by  legislation,  had  the  consequence,  here  also,  that  succession 
was  limited  to  one  heir.  This  was  the  so-called  "  single  "  or 
"  preferential  "  heir  ("  Anerbe  ").  Unlike  the  rule  of  succession 
which  prevailed  in  the  case  of  entailed  estates  of  noble  families, 
and  family  fideicommissa  (.mpra,  p.  313),  the  other  children  pos- 
sessed no  right  to  compensation  from  such  a  preferential  heir, 
because  the  estate  was  not  the  property  of  the  farmer  ("  Meier  "). 

In  ]\Iiddle  and  Southwest  Germany,  with  the  exception  of  Old 
BaN'aria,  heritable  leaseholds  for  money  rents  ("  Zinsleihen  ") 
were  most  common,  except  where  peasant  ownership  subject  to 
rents  ("  zinspflichtiges  Eigentum ")  was  recognized.  \o  soli- 
dary feudal  estates  were  developed  in  these  parts  of  Germany ; 
on  the  contrary,  the  old  manorial  system  continued  to  exist  with 
the  open-field  system  as  its  basis  ("  Streubesitz  "),  and  certain 
dues  as  its  essentially  exclusive  support.  The  possessory  rights 
of  the  tenants  were  therefore,  in  these  regions,  very  much  more 
favorable,  generally  speaking,  than  in  the  East.  It  is  true  that 
this  advantage  had  a  reverse  side :  there  was  far  less  solidarity 
of  the  peasant  holdings;  only  slight  restriction,  or  none,  existed 
upon  their  free  partition  inter  vivos  and  mortis  causa. 

(VI)  Modern  Agrarian  Legislation.  —  The  enfranchisement  of 
the  peasant  has  been  realized  in  the  German  States  since  the  end 
of  tlie  1700  s  (supra,  p.  94).  The  purposes  of  this  movement 
included,  along  with  the  abolition  of  the  personal  servitude  of 
the  peasants  and  the  assurance  to  them  of  full  political  rights, 
the  destruction  of  all  charges  upon  peasant  holdings  and  the 
transformation  of  all  baser  possessory  rights  into  unqualified 
ownership. 

In  Prussia,^  —  after  the  crown  had  transformed  all  non-herit- 

'  G.  F.  Knnpp,  "Dio  Baiiornliofroiuns:  iind  dor  Urspning  dor  Landar- 
beitor  in  don  iiltoron  Tciloii  Proussons"  (2  vols.,  1SS7) ;  Auhin,  "Zur 
Oesf'liiohto  dos  ^utshorrli('h-l);uiorliclion  VorhiUlnisscs  in  Oslprousson  von 
dor  (Jriindunjjr  dos  Ordcnsstaalos  his  zur  St(>iiisohon  Rofonn"  (1910); 
SIcaliiuil,  "(Jutslicrrscliafl  uiid  T^andarlx'itor  in  Osldoulsohland ",  in 
Schmnller's  ,J.  B.,  XXXV  (1011).  i:««)-13(;() ;  Mnurr.  "Das  Sohioksal  dor 
erledigten  Bauornhofo  in  don  oslliohon  Provinzon  Proussons  zur  Zeit  der 
Bauernbefreiung  ",  in  Forsch.  Br.  Pr.  G.,  XXIV  (1911),  249-255. 

330 


Chap.  VII]  THE   LAW   OF  LAND  :     REAL   RIGHTS  [§  45 

able  "  Lassbesitz  "  holdings  of  peasants  upon  the  crown  lands 
("  Domanenbaiiern  ")  into  heritable  holdings  as  early  as  1777, 
—  the  great  reform  statutes  were  introduced  by  the  celebrated 
edict  of  October  9th,  1807,  which  (to  mention  only  one  provision) 
declared  free  to  everj^one  the  acquisition  of  peasant  holdings, 
thereby  doing  away  with  the  conception  of  the  peasant  holding 
as  a  piece  of  rural  land  that  presupposed  a  certain  personal  status 
in  the  possessor.  Following  this,  the  edict  of  November  14th, 
1811,  provided  that  not  only  those  peasant  holdings  as  to  which 
there  already  existed  a  qualified  right  of  inheritance  or  at  least 
an  obligation  on  the  part  of  the  lord  to  renew  the  lease  to  the  heirs 
of  a  deceased  tenant,  but  also  estates  held  under  less  favorable 
tenancies,  should  be  converted  into  the  free  unlimited  property 
of  the  possessor,  subject  to  compensation  to  the  lord,  at  the  in- 
stance of  either  of  the  two  parties.  Of  course,  in  the  absence  of 
statutory  provision  to  the  contrary,  the  peasants  could  not  be 
prevented  from  thereafter  selling  their  free  holdings  to  their  former 
lords.  The  compensation  was  so  adjusted  that  the  possessors 
of  heritable  "  Lassgiiter  "  were  required  to  cede  to  the  lord  a 
third,  and  the  possessors  of  non-heritable  "  Lassgiiter  "  and  peasant 
lessees  for  years  a  half,  of  their  land.  The  cost  of  enfranchise- 
ment and  of  the  conversion  of  the  leaseholds  into  ownership  was 
therefore  a  diminution  of  the  peasant  holdings  by  a  third  or  a 
half.  There  was  herein  involved  an  abandonment,  —  inconsistent 
with  the  older  policy  of  the  State,  yet  perhaps  with  that  qualifica- 
tion justifiable,  —  of  the  principle  of  compulsory  leasehold  renew- 
als formerly  imposed  upon  the  lords.  The  declaration  of  ]\Iay 
29th,  1816,  went  even  farther  in  this  direction.  It  restricted  the 
applicability  of  the  preceding  rules  to  holdings  that  had  been 
registered  in  the  land-book,  and  were  capable  of  furnishing  cer- 
tain statutory  team  labor  ("  spannfahig  ").  All  smaller  holdings, 
although  not  so  convertible  into  normal  statutory  estates  ("  regu- 
lierbar  ")  were  abandoned  either  to  confiscation  by  the  lord  or  to 
conversion  into  pure  leaseholds.  It  is  true  that  the  Compensa- 
tion Act  of  March  2d,  1850,  endeavored  at  that  late  day  to  cure 
this  defect  in  the  declaration  of  1816:  it  extended  the  character 
of  "  Regulierbarkeit  "  (quality  of  being  regularized)  to  every 
"  Lassgut  "  holding,  and  imposed  a  measure  of  damages,  not  as 
before  in  land,  but  in  money.  The  Declaration  of  1816,  however, 
and  the  far-reaching  renunciation  which  it  contained  of  the  prin- 
ciples of  compulsory  lease  renewals  imposed  by  the  State,  had  the 
consequence  that  a  great  number  of  peasant  holdings  had  mean- 

331 


§  45]  THE    LAW    OF   THINGS  [BoOK   II 

while  disappeared,  being  taken  over  into  the  lord's  estate,  so  that 
the  statute  of  1850  found  only  a  relatively  narrow  field  of  applica- 
tion ;  a  fact  wliich  is  not  the  least  among  those  responsible  for 
the  scarcity  of  labor  at  the  present  day,  in  certain  regions.^ 

As  in  Prussia,  so  also  in  the  other  States  of  Germany  the  old 
types  of  tenancy  were  for  the  most  part  abolished  in  the  course 
of  the  1800  s,  especially  in  consequence  of  the  movement  of  1848; 
the  peasant  rights  of  usufruct  being  in  some  States  completely 
allodialized  and  their  re-creation  prohibited,  and  in  others  de- 
clared redeemable,  either  generally  or  with  the  exception  of  partic- 
ular classes.  Only  a  few  States  allowed  the  older  forms  of  ten- 
ancy to  continue,  so  far  as  they  still  survived  (estates  subject  to 
heritable  rents,  heritable  leaseholds,  fee-farms,  etc. :  "  Erbzins-", 
"  Erpacht-  ",  "  Meiergiiter  "),  or  made  their  conversion  into  owner- 
ship dependent  upon  a  voluntary  redemption.  The  new  Civil 
Code  has  not  done  away  with  such  relationships,  spared  by  the 
State  law.  It  does  forbid,  however,  as  many  State  statutes 
had  earlier  done,  the  new  creation  of  heritable  tenancies.  The 
Introductory  Act  of  the  Code  (§  63)  makes  an  exception  to  this 
principle  in  the  case  of  heritable  leasehold  rights  ("  Erbpacht- 
rechte  ")  in  those  States  in  which  they  still  exist.  But  even  in 
many  of  these  States,  as  for  example  in  Hesse  and  in  the  Thu- 
ringian  principalities,  the  future  creation  of  new  heritable  leaseholds 
has  been  prohibited  by  the  State  law.  Only  in  the  two  Mecklen- 
burgs  and  in  Liibeck  are  heritable  leases  expressly  recognized 
and  regulated.  The  same  is  true  of  lands  subject  to  rent  charges 
{"  Rentengiiter  ")  in  Prussia  (infra,  §  52). 

§  40.  Urban  Leaseholds.^  (I)  The  Older  Law.  —  Leaseholds 
under  town  law  were  developed  as  free  tenancies.  There  was 
lacking  in  them  the  personal  dependence  of  the  tenant  upon  the 
lessor  which  was  essential  to  a  great  part  of  the  peasant  ("  biiuer- 
lich  ")  tenancies,  as  also  to  feudal  tenure.  In  most  cities  the 
lands  upon  which  the  burghers  erected  their  houses  were  conveyed 
to  them  by  the  town  lord,  not  in  rent-free  ownership  but  as  lease- 
holds. Such  a  tenancy  was  a  heritable  right :  the  urban  lease- 
hold was  a  free  and  heritable  leasehold.  These  free  heritable 
leases  of  the  towns,  like  those  of  rural  regions,  owed  their  origin 
to  the  free  precarious  tenures  of  the  Prankish  period.     Indeed, 

^  lirunner,  "Lcihozwanp^ ",  22. 

2  Compare  the  literature  cited  for  §  45  supra,  and  §  52  infra.  Also 
Schrciher,  "Die  Geschichte  der  Erbleilie  in  der  Stadt  Strassburg  i.  E.", 
in  BeyerWs  "Beitrage",  III,  3  (1900). 

332 


Chap.  VII]  THE   LAW   OF   LAND  :     REAL   RIGHTS  [§  46 

no  legal  difference  whatever  existed  between  the  heritable  lease- 
holds of  the  towns  and  of  rural  regions.  It  is  true  that  in  the 
cities  such  leaseholds  were  not  only  earlier  developed  than  in  the 
country,  but  attained  a  far  more  general  dissemination  than  was 
possible  under  rural  conditions ;  for,  as  we  have  already  men- 
tioned {supra,  pp.  329  et  seq.),  man\'  other  forms  of  tenure  had 
either  persisted  or  been  newly  formed  in  rural  districts,  at  least 
in  the  older  parts  of  Germany.  In  the  colonized  regions  of  the 
East,  however,  the  free  heritable  lease  was  at  first  the  generally 
prevailing  form  of  tenancy,  even  among  peasant  tenements.  At 
the  same  time,  despite  these  special  conditions  in  Eastern  Ger- 
many, the  free  heritable  leasehold  was  regarded  as  peculiar  to  the 
town  law,  and  was  therefore  known  simply  as  "  Weichbild  ", 
"  Weichbildrecht  ",  "  Burgrecht  "  :  town  or  burgage  tenure. 
Like  the  rural  "  colonial  "-lease,  the  heritable  urban  leasehold 
was  originally  one  granted  by  the  founder  of  a  town  ("  Griinder- 
leihe  ").  After  the  district  intended  for  the  town  had  been  divided 
into  a  number  of  building  lots,  as  nearly  as  possible  of  equal  size, 
the  settlers  received  from  the  town-lord,  on  the  basis  of  a  general 
privilege  issued  by  him,  a  heritable  and  alienable  real  right  in  the 
building  lots  assigned  to  them,  in  return  for  which  they  were 
bound  to  render  to  him,  in  addition  to  the  public  services  to  which 
they  were  obligated  as  burghers,  a  certain  rent  ("  census  arealis  ", 
"  Wurtzins  ",  "  Freizins  ").  This  was  for  the  most  part  of  slight 
amount,  of  no  significance  except  as  a  recognition  of  the  lord's 
title,  and  therefore  involved  no  personal  dependence  of  the  citizen. 
In  place  of  these  original  "  founder  "-leaseholds  there  appeared 
later,  in  the  course  of  the  city's  further  development,  private 
heritable  leaseholds.  These  were  granted,  not  by  the  town-lord 
but  by  private  landowners,  and  therefore  created  between  lessor 
and  tenant  a  relation  under  the  private  law  alone.  Unlike  the 
founder-leaseholds,  which  always  had  exclusive  reference  to  land, 
such  leaseholds  often  existed  in  the  houses,  baths,  booths,  and  stalls 
thereon  erected,  and  also  in  gardens  and  vineyards.  In  the  case 
also  of  these  private  heritable  leases  the  tenant  was  bound  to 
render  a  fixed  rent  of  slight  amount,  to  maintain  the  house  in 
good  condition  if  it  was  included  in  the  leasehold,  and  to  make 
good  all  damage  out  of  his  own  means. 

In  time  the  lessor's  ownership  in  the  land  sank  to  a  mere  right 
to  rent,  a  right  which  was  a  real  charge  upon  the  land ;  whereas 
the  tenant,  in  addition  to  the  ownership  of  the  house,  now  acquired 
the  land,  also,  as  his  own,  subject  to  the  charge  resting  thereon  in 

333 


§  46]  THE    LAW    OF   THINGS  [BoOK    II 

favor  of  the  owner  of  the  rent.  In  this  manner  there  originated 
the  institute  of  the  capitalistic  "  purchase-rent  "  ("Rentenkauf  " 
—  infra,    §  52). 

These  building-leases  completely  disappeared,  almost  every- 
where, already  in  the  Middle  Ages.  In  their  place  there  was 
developed  the  non-usufruetuary  or  occupancy  lease  ("  ]\Iiete  ") 
of  buildings  and  dwellings.  But  these  ordinarily  gave  the  lessee 
a  real  right,  in  accord  with  the  fundamental  idea  of  the  medieval 
law  of  seisin,  and  were  therefore  not  destroyed  by  a  sale  of  the 
house  ("  hur  gat  vor  gop  ",  —  infra,  §  84). 

(II)  The  Modem  Development.  —  The  Roman  law  of  heritable 
building  rights,  the  superficies,  —  also  known  as  "  Platz-", 
"  Zimmer-",  "  Keller-",  and  "  Bodenzinsrecht  " :  rights  of 
"  ground  ",  "  room  ",  "  basement  ",  —  was  adopted  into  the  com- 
mon law,  with  only  slight  changes,  at  the  time  of  the  Reception. 
The  regional  legal  systems  also  adopted  it,  although  they  treated  it 
very  differently ;  some  of  them  conceiving  of  it  as  a  case  of  di\'ided 
ownership  (Bavarian  "  Landrecht  ")  ;  others,  as  a  sort  of  real 
servitude  (Prussian  "  Landrecht  "),  or  as  a  variant  form  of  per- 
sonal servitudes  (Saxon  Code),  or  as  a  usufructuary  ownership 
of  the  surface  of  the  soil  (Austrian  Code). 

The  new  Civil  Code  recognizes  the  heritable  building  right  of 
the  common  law  (§§  1012-1017)  as  the  single  heritable  usufruc- 
tuary right  in  a  thing  that  is  possible  under  the  imperial  law,  and 
at  the  same  time  has  wholly  withdrawn  it  from  State  regulation. 
Only  existing  superficies  have  been  left  unchanged.  This  real 
right  of  the  present  day,  because  it  refers  in  most  cases  to  build- 
ings, may  be  regarded  as  having  replaced  the  medieval  building 
lease  ("  Hauserleihe  ").  But  it  has  a  broader  content,  for  it 
is  equally  applicable  to  any  other  structures,  —  walls,  towers, 
bridges,  railways,  tunnels,  cellars,  etc. ;  and,  moreover,  in  order  to 
promote  the  better  use  of  the  structure,  can  be  extended  to  land 
which  is  not  necessary  for  the  building  proper,  such  as  a  yard, 
garden,  entry-way,  and  the  like.  The  restriction  to  a  part  of  the 
building,  which  was  formerly  possible,  has,  on  the  other  hand, 
been  done  away  with ;  and  likewise  its  creation  in  the  case  of 
other  improvements  than  building  structures  (as  plants,  "  Pflan- 
zungssuperfizies  "). 

§  47.  The  Fief :  the  Feudal  Law  of  Medieval  Germany.  (I) 
The  Feudal  System  generally.  —  The  most  important  tcnurial 
relation  ("  Leiheverhiiitnis  ")  of  the  medieval  law  was  tenure 
("  Lehn  ")  in  the  technical  sense.     Hardly  another  institute  of  the 

334 


Chap.  VII]  THE    LAW    OF    LAND  :     REAL    RIGHTS  [§  47 

law  equalled  in  importance  the  tenancy  ("  Leihe  ")  of  the  feudal 
law,  since  in  Germany  most  lands  and  in  England  and  France 
all  lands  were  subject  to  feudal  bonds  ("  nulle  terre  sans  seigneur  "). 
But  the  feudal  law  was  not  merely  a  part  of  the  law  of  things, 
nor  a  part  only  of  the  private  law ;  in  it  was  most  clearly  expressed 
the  inseparability  of  the  public  and  the  private  law.  Through 
centuries  it  determined  the  nature  of  great  portions  of  the  jural 
life  of  the  country ;  indeed,  the  whole  of  medieval  civilization 
acquired  its  peculiar  stamp  from  the  feudal  structure  of  State  and 
society.  How  far  this  affected  the  ideas  of  medieval  men  is  seen, 
for  example,  in  the  widely  imitated  lyric  poetry  of  the  trouba- 
dours of  Southern  France,  who  sang  of  love  as  a  feudal  relation 
between  the  lovers.  Originating  in  the  Frankish  Empire  in  a 
union  of  vassaldom  and  the  "  beneficium  "  ("  Benefizialwesen  "), 
the  feudal  system  spread  from  the  Frankish  law  into  most  of  the 
countries  of  Christendom,  and  brought  about  what  we  know  as 
the  feudalization  of  the  medieval  States.  In  this  place  we  have 
to  consider  the  system  from  the  side  of  the  private  law  alone.  It 
was  constituted  partly  by  general  statutes  of  the  Territorial 
rulers,  and  partly  by  compacts  between  them  and  their  vassals ; 
and  was  further  developed  by  administration  in  the  feudal  courts. 
Because  of  its  wide-reaching  importance  it  was  developed  with 
particular  care.  "  The  German  feudal  law  is  the  richest  part  of 
the  rich  field  of  the  German  law  of  things."  ^  Aside  from  this 
practical  development  it  also  found  exhaustive  theoretical  treat- 
ment at  an  early  day.  In  the  different  Mirrors  of  the  medieval 
law  it  was  presented  side  by  side  with  the  general  Territorial 
law,  —  in  particularly  striking  manner  by  Eike  von  Repkow. 
His  Saxon  law  of  feudalism  "  may  well  challenge,  in  the  fullness 
and  clearness  of  its  content  and  in  the  beauty  of  the  presentation, 
every  other  legal  record."  ^ 

A  brief  preliminary  sketch  must  now  be  given  of  the  classical 
feudal  law  of  medieval  Germany.' 

(II)  Specific  Principles  of  the  German  Feudal  Law.  —  In  the 
beginning  the  expression  "  Lehn  "  (fief),  equally  with  the  corre- 
sponding Ivatin  term  "  beneficium  ",  designated  relatively  color- 
less tenancies  ("  Leihen  ")  of  the  most  various  kinds  {supra,  pp.  321 
et  seq.).     In  the  sense  of  the  feudal  law  when  fully  developed  the 

1  Sohm,  in  Z.  Priv.  Off.  R.,  I  (1874),  247.  2  Ibid. 

'  Homeyer,  in  his  edition  of  the  "  Sjichsisches  Lehnrecht",  has  given  a 
detailed  and  systematic  presentation  of  this:  "Des  Saehsenspiegels 
zweiter  Teil  nebst  den  verwandten  Rechtsbiichern "  (Vol.  2,  1844),  201- 
634. 

335 


§  47]  THE    LAW    OF   THINGS  [BoOK   II 

"  Lehn  "  was  opposed,  along  with  the  technical  expression  "  feu- 
dum  "  (usually  derived  from  "  faihu  "  =  "  Yieh  "  =  cattle,  money, 
property ;  also  derived,  however,  from  Old  High  G.  "  fehon  "  = 
to  use;  also  regarded  as  Keltic),  to  the  allod  (=  "  alodis  ",  from 
"  al  "  =  all,  and  "  od  "  =  ownership).^  It  was  distinguished 
from  all  other  tenures  by  its  peculiar  relations  of  service  and 
fidelity  between  lord  and  tenant.  This  personal  relation  retained 
throughout  the  ^Middle  Ages  a  very  special  importance.  In  course 
of  time,  however,  the  real  element  became  predominant,  even 
in  the  case  of  feudal  tenure ;  and  thus  there  originated  the  idea,  — 
an  idea  inconsistent  with  historical  development,  —  that  this 
bond  of  personal  fidelity  was  a  consequence  of  the  possession  of 
the  fief.-  As  Ileusler  has  finely  remarked,^  "  the  relation  between 
lord  and  man  preserved  a  moral  elevation  that  was  essential  to 
the  task  which  the  feudal  law  was  called  upon  to  perform.  Lord 
and  man  stood  infinitely  nearer  to  one  another  socially  and  politi- 
cally than  land-lord  and  peasant ;  the  duty  of  the  vassal  was  a 
nobler  one,  and  in  consequence  of  its  political  aspect  was  an  imme- 
diate condition  of  the  existence  of  the  feudal  lord ;  its  basis  was 
not  a  mere  economic  interest,  as  in  the  case  of  peasant  tenures, 
but  one  which  affected  also  the  tenant's  personal  individuality. 
There  was  not  merely  a  gift  of  a  fief,  balanced  against  certain 
precisely  defined  services  as  equivalents  of  each  other ;  the  rela- 
tion involved  a  mutual  bond  of  fidelity  and  homage,  which  ex- 
tended not  merely  to  positive  action  but  also,  negatively,  to  the 
exclusion  of  all  prejudicial  or  directly  harmful  conduct  ",  the 
violation  of  which  might  have  as  its  effect  the  forfeiture  of  feudal 
rights.  As  for  the  lord,  it  was  the  basis,  in  particular,  of  his 
claims  to  feudal  services,  military  services,  and  attendance  at  his 
court :  "  the  former  including  service  under  arms,  for  periods  not 
exactly  determined,  in  the  field ;  the  latter,  attendance  at  the 
seigniorial  residence  or  court,  and  especially  suit  to  the  feudal 
court  of  justice."  ^  The  vassal  had  a  claim,  in  turn,  upon  the 
fidelity  of  his  lord,  and  in  particular  a  claim  to  security  in  his 
feudal  rights;  although,  indeed,  the  lord  (unlike  the  vassal) 
was  not  bound  to  assume  these  obligations  of  fidelity  under  oath. 
Since  the  fief  was  originally'  granted  to  the  vassal  to  tlie  end  that 
he  might  with  its  helj)  fulfill  the  services  imposed  upon  him,  and 
above  all  military  obligations,  it  was  a  "  Rittersold  ",  a  knight's 
hire. 

*  ('.  Fichwerin,  art.  "Allod"  in  Hoop's  "  Roalloxikon  ",  I  (1011),  65. 
2  Heusler,  "Institutionen  ",  II,  KU.         ^  7^^,/.^  102.         4  jbid.^  163. 

336 


Chap.  VII]  the  law  of  land  :    real  rights  [§  47 

Anything  whatever  which  yielded  a  permanent  income  or  prod- 
uce could  be  granted  as  a  fief ;  and  although  only  lands  —  that 
is  possession  of  land,  including  e.g.  castles  —  were  originally 
granted  as  fiefs,  certain  rights  also  later  became  the  object  of 
feudal  tenures;  namely,  those  that  secured  a  permanent  user 
or  an  assured  income,  such  as  various  regalities  and  real-charges 
(rights  of  mill,  coinage,  customs,  tithes),  and  above  all  public 
offices  (dukedoms,  earldoms,  judicial  oflBces,  bailiwicks,  etc.). 
The  first  tenant  could,  with  certain  exceptions,  subject  the  fief 
in  turn  to  a  sub-infeudation.^ 

On  account  of  the  military  character  of  the  fief  ("  Lehn  ")  as 
distinguished  from  other  tenancies  generally  ("  Leihen  "),  only 
men  of  knightly  status  and  capable  of  bearing  arms  possessed  full 
feudal  capacity,  active  and  passive  ("  Heerschild  ").  For  this 
reason  Jews,  outlaws,  and  excommunicants  could  under  no  cir- 
cumstances be  granted  fiefs ;  they  were  absolutely  incapable  of 
feudal  relationships.  Burghers,  peasants,  ecclesiastics  (with 
the  exception  of  the  princes  of  the  church),  women,  and  corporate 
associations  could  be  enfeoffed  only  by  the  grace  of  the  lord  ("  per 
gratiam  domini  ")  ;  and  even  then  they  must  appoint  a  so-called 
"  bearer  "  or  holder  of  the  fief  ("  Lehnstrager  ")  who  occupied 
the  position  of  vassal  in  relations  with  third  persons,  especially 
the  lord,  —  whereas  the  seisin  remained  in  the  vassal  whom  he 
represented.  Such  tenants  were  capable  only  of  a  relative  feudal 
capacity. 

The  creation  of  a  fief  was  accomplished  by  the  act  of  investiture, 
which  was  composed  of  two  parts,  corresponding  to  the  personal 
and  the  real  elements  of  the  feudal  relation.  Of  these  the  first 
was  the  commendation :  before  the  assembled  vassals,  and  with 
his  hand  in  his  lord's,  the  new  vassal  swore  fidelity  to  his  lord,  and 
confirmed  it  with  a  kiss,  promising  to  be  true,  faithful,  and  obedi- 
ent. This  was  known  as  swearing  or  doing  homage  ("  homa- 
gium",  "hominium",  "  Mannschaft  ",  "Hulde").  After  this 
followed  the  second  step :  the  giving  or  letting  ("  Leihe  ")  of 
the  object  of  the  fief.  It  took  the  form  of  a  symbolic  investiture 
under  the  law  of  things  {supra ,  p.  242),  being  performed  by  the 
lord's  delivery  of  a  symbol  of  investment  accompanied  by  a  simul- 
taneous oral  declaration  of  intention  to  convey';  that  is  to  say, 
"  with  hand  and  mouth."  The  symbols  used  included  those 
otherwise  customary  in  livery  of  seisin,  —  the  staft",  twig,  glove, 

^  K.  Lehmann,  art.  "Afterlehn"  in  Hoop's  "  Reallexikon,"  I  (1911), 
40  et  seq. 

337 


§  47]  THE    LAW    OF   THINGS  [BoOK  II 

or  hat,  —  but  especially  a  sword  or  a  spear ;  in  the  case  of  secu- 
lar principalities  a  flag  ("  Fahnlehn  "),  and  in  the  case  of  eccle- 
siastical principalities  a  ring  and  stafY  down  to  the  time  of  the 
Concordat  of  Worms,  and  thereafter  a  scepter.  The  ceremony 
was  concluded  by  the  manual  delivery  to  the  vassal  of  a  deed  of 
enfeoffment  ("  Lehnbrief  ")  ;  and  to  the  lord,  of  an  acknowledg- 
ment or  counter-deed  ("  Lehnrevers  ").  An  investiture  was  neces- 
sary not  only  for  the  creation  of  a  new  fief,  but,  —  inasmuch  as  the 
right  of  the  feoffee  existed  only  so  long  as  his  relation  of  vassaldom 
to  the  feoffor  continued,  —  whenever  there  was  a  change  in  the 
person  of  the  lord  (a  succession  to  the  crown  or  in  the  family  of 
the  lord)  or  of  the  vassal  ("  Mannfall  ").  In  such  case  the  vassal 
who  was  entitled  as  heir  to  succession  in  the  fief,  or  to  recognition 
by  the  new  lord,  was  bound  to  give  notice  ("  muten  ",  "  sinnen  ") 
within  a  year  and  a  day  of  his  desire  for  a  renewal  of  the  fief. 

Feudal  investiture  was  preceded  by  a  contract  of  feoft'ment, 
and  frequently,  —  as  earlier  in  the  case  of  the  Prankish  precaria, 
—  by  a  conveyance  of  the  fee  upon  condition  of  its  reconveyance 
as  a  fief  ("  feudum  oblatum  ").  It  included  the  two  elements, 
common  to  the  law  of  things,  of  an  alienation  ("  Sala  ")  and  an 
investiture ;  but  not  any  "  resignatio  "  or  release  ("  Auflassung  ") 
in  the  older  sense,  —  for  the  good  reason  that  the  lord  by  no  means 
completely  abandoned  his  rights  in  the  land,  but  on  the  contrary 
retained  his  ownership  of  the  fief  and  the  corresponding  proprietary 
seisin  ("  Eigengewere  ").  The  vassal,  on  the  other  hand,  re- 
ceived, as  a  consequence  of  investiture  and  in  accordance  with  the 
general  rules  of  the  law  of  things,  not  only  a  real  right  in  the  land, 
but,  in  the  absence  of  a  provision  to  the  contrary,  the  seisin  also ; 
namely  the  feudal  seisin  ("  Lehnsgewere  ").  In  case  of  an  enfeoff- 
ment without  immediate  investiture  and  livery  of  seisin,  men 
spoke  of  feoffment  by  contract  ("  Lehen  unter  Gedinge  ").  In 
this  case  the  vassal  acquired  only  a  personal  right  against  the 
feoffor.  This  form  was  chosen  when  lands  were  to  be  conveyed 
which  at  the  time  were  still  in  the  feudal  possession  ("  Lehns- 
besitz  ")  of  a  third  person,  whether  a  particularly  designated 
holding  {"  geliehenes  oder  benanntes  Gedinge  ") ;  or  that  hold- 
ing, among  several  of  the  same  lord,  which  should  first  become 
vacant,  —  in  other  words,  a  deed  of  an  undetermined  reversion 
("  Anwartung  ",  "  Anwartschaft  ",  "  unbenanntes  Gedinge  "). 
Although  the  feoffment  conveyed  to  the  tenant  no  immediate 
seisin  in  the  land,  in  the  case  either  of  the  direct  or  the  reversionary 
deed,  nevertheless  the  right  of  the  feoffee  was  different  in  the 

338 


Ch.\P.   VII]  THE    LAW    OF   LAND  :     REAL    RIGHTS  [§  47 

two  cases.  In  the  case  of  conditional  feoffment  of  a  definite 
holding  the  feoffee  acquired  the  seisin,  precisely  as  an  heir,  im- 
mediately upon  the  death  of  the  present  possessor ;  but  in  the 
case  of  a  feoffment  of  a  reversion  the  estate  reverted  first  to  the 
lord. 

This  real  right  in  the  estate,  which  was  thus  conveyed  to  the 
vassal  by  the  feoft'ment,  was  of  great  extent  and  of  varied  content. 
He  alone  could  dispose  of  its  profits;  he  could  also  create  in  it 
sub-feuds.  Only  dispositions  of  the  substance  of  the  land,  partic- 
ularly alienations  and  pledges,  he  could  not  affect  without  the 
assent  and  cooperation  of  the  lord,  —  it  was  in  this  connection 
that  the  real  right  remaining  in  the  lord  most  frequently  appeared 
in  practice.  Conveyances  without  the  lord's  assent  were  void, 
and  involved  forfeiture  of  the  fief  by  the  vassal.  The  lord,  it  is 
true,  might  "  das  Gut  lassen  "  ("  abandon  "  the  land),  i.e.  elimi- 
nate himself  by  conveying  all  his  rights  to  another ;  but  the  posi- 
tion of  the  tenant  could  not  thereby  be  worsened.  And  therefore 
alienations  by  the  lord  to  one  of  another  class  ("  Ungenosse  "), 
and  partitions  of  the  estate,  were  forbidden.  On  the  other  hand, 
according  to  the  theory  of  the  Law-Books  the  consent  of  the  vas- 
sal's heirs  was  not  yet  essential  to  a  conveyance.  Such  consent 
became  necessary  only  from  the  time  when  a  right  of  inheritance 
in  the  fief  was  recognized  in  the  vassal's  sons  and  later  issue. 
Originally  no  such  right  existed ;  on  the  contrary,  the  feoffment 
was  only  for  so  long  as  the  feoffor  and  the  feoffee  should  live. 
Inasmuch,  however,  as  the  fief  came  to  be  employed  even 
at  an  early  date  primarily  for  military  purposes,  in  consequence 
of  the  need  of  mounted  vassals,  it  became  customary  for  the  heir 
of  a  deceased  lord  to  reconvey  the  fief  to  the  occupant,  and  that 
the  lord  should  not  deny  to  the  son  of  his  dead  liegeman  a  renewal 
of  the  fief.  "From  the  1100s  onward  the  fief  was  treated,  in 
the  absence  of  express  provision,  as  heritable ;  in  other  words, 
there  was  developed  under  the  private  law  a  compulsion  of  re- 
feoffment  {"  Leihezwang  ")  which  brought  about  the  heritable 
character  of  the  fief."  ^  Along  with  this  compulsory  re-feoff ment 
of  the  private  law  there  was  added  a  similar  one  of  the  public 
law  in  the  case  of  public  offices  that  became  feudal  holdings. 
The  lord  was  bound  to  refill  by  feoffment  any  feudal  office  ("  Amts- 
lehen  ")  the  holder  of  which  died  without  heirs.  This  was  a 
principle  which,  in  consequence  of  its  application  to  secular  prin- 
cipalities that  became  fiefs  (that  is  to  "  flag-fiefs  "),  had  the  most 
1  B runner,  "Leihezwang",  7. 
339 


§  47]  THE    LAW    OF   THINGS  [BoOK   II 

baleful  political  consequences ;  for  it  made  futile  in  Germany 
the  hope  of  such  a  growth  of  royal  power  as  resulted  in  France 
and  in  England  from  the  confiscation  of  the  great  crown  fiefs. 
As  regards  the  ends  served  by  the  fief  under  public  law  in  the 
organization  of  the  army  and  the  civil  service,  the  principles  of 
the  Germanic  law  of  inheritance  were  inai)plicable,  since  they 
divided  the  heritage  between  the  heirs  of  equal  blood.  The  conse- 
quence was  that  special  rules  of  feudal  inheritance  were  developed 
which  differed  from  the  general  law  of  inheritance  in  lands.  Of 
course  only  persons  capable  of  feudal  services  could  be  feudal 
heirs ;  those  absolutely  inca})able  were  therefore  wholly  excluded, 
and  those  who  were  under  relative  incapacity  were  bound  to  satisfy 
the  conditions  which  made  enfeoffment  possible,  —  such,  for 
example,  as  the  apj)ointment  of  a  holder  of  the  fief  ("  Lehnstra- 
ger  ").  Not  only  this,  but  even  as  to  persons  capable  of  feudal 
service  the  right  was  much  more  limited  than  in  the  general  law 
of  the  land  ("  Landrecht  ").  Only  the  vassal's  son  seems  orig- 
inally to  have  been  conceded  a  right  of  succession  under  the 
German  feudal  law;  later  the  right  was  extended  to  all  the 
issue  of  the  last  occupant.  On  the  other  hand,  the  other  de- 
scendants of  the  first  tenant,  as  well  as  all  ascendants,  were  ex- 
cluded. However,  these  rules  were  modified,  at  an  early  day, 
by  particular  agreement  in  special  cases.  Women,  notably,  were 
accorded  rights  of  succession. 

In  case  of  the  presence  of  several  heirs  of  equal  rank  the 
lord  did  not  originally  need  to  enfeoff  more  than  one ; 
in  return,  the  others  could  demand  compensation  from  the  fee 
("  Allod  ").  From  the  1300  s  onward,  however,  he  was  bound 
to  enfeoff  the  heirs,  if  they  demanded  it,  in  collective  hand.  En- 
feoffment in  collective  hand  was  at  first  the  sole  form  of  the  Ger- 
man feudal  law  for  the  community  ("  gemeinschaftliche  ")  enfeoff- 
ment of  several  vassals.  As  required  by  the  general  rules  of  owner- 
ship in  collective  hand  (supra,  p.  139),  such  feoffment  was  realized 
by  the  tenants'  laying  their  hands  in  those  of  the  lord  and  grasp- 
ing together  the  symbol  of  investiture  he  extended.  In  relation 
to  him  they  constituted  biit  one  person ;  but  they  were  bound, 
upon  demand  by  him,  to  designate  one  of  their  number  upon  whom 
he  could  depend  for  the  due  performance  of  feudal  obligations. 
They  received  the  fief  in  undivided  possession  and  enjoyment. 
From  the  1300  s  onward,  however,  partititions  of  the  usufruct, 
accompanied  by  abolition  of  community  management  ("  Mut- 
schierungen  " ;  supra,  p.  143)  became  increasingly  common.     The 

340 


Ch  \P.   VII]  THE    LAW    OF    LAND  :     REAL    RIGHTS  [§  48 

collective  feoffees  could  dispose  either  of  the  entire  fief  or  of 
portions  thereof  only  by  an  act  of  collective  hand.  Upon  the 
death  of  a  tenant  who  left  no  children  capable  of  feudal  services, 
benefit  of  survivorship  prevailed  in  favor  of  the  others.  Along 
with  this  collective  feoffment  of  the  German  law  there  was  also 
developed,  as  early  as  the  iNIiddle  Ages,  in  Germany  as  elsewhere, 
a  co-feoffment  in  undivided  shares  ("  ^Nlitbelehnung  zu  Bruch- 
teilen  ")  similar  to  the  Italian  "  coinvestitura." 

During  the  minority  of  a  vassal  a  feudal  wardship  distinct 
from  the  wardship  of  the  Territorial  Law  was  recognized.  The 
lord  himself  was  ordinarily  the  feudal  guardian.  As  such  he  took 
the  profits  of  the  fief  (the  so-called  "  Angefalle  ") ;  but  he  could 
also  let  these  out  along  with  the  wardship.  The  origin  of  this 
wardship  of  the  feudal  law  "  goes  back  to  a  temporary  right  of 
escheat  ('  Heimfallsrecht  '),  which  was  not  destroyed  by  the 
development  of  the  heritable  character  of  the  fief  and  assured 
the  lord  compensation  for  the  damages  he  suffered  through  the 
loss  of  feudal  services  during  the  continuance  of  the  tenant's 
minority."  ^  In  time  the  rule  was  developed  that  the  lord  was 
bound  to  convey  the  feudal  wardship  (i.e.  of  the  body)  to  the  guard- 
ian of  the  fee  {"  Allodialvormund  "),  even  though  the  latter  might 
be  his  vassal,  upon  demand  and  re-feoffment. 

If  a  vassal  died  without  feudal  heirs,  and  if  neither  a  feudal 
contract  ("  Gedinge  ")  nor  sub-feuds  existed,  the  fief  escheated  to 
the  lord.  Moreover,  the  vassal  could  at  any  time  dissolve  the 
feudal  relation  of  his  own  motion  by  a  release  of  the  land  to  the 
lord  or  by  a  renunciation  of  homage.  On  the  other  hand,  if  he 
was  guilty  of  a  felony  (from  Old  Norse  "  fel  ",  "  felo  ",  Old  High  G. 
"  fillo  "=  criminal,  wretch),  —  that  is,  if  he  was  guilty  of  a  breach 
of  feudal  faith,  a  refusal  to  perform  his  feudal  services,  a  convey- 
ance of  the  fief,  or  a  failure  to  give  due  notice,  —  or  if  he  was 
guilty  of  any  other  dishonorable  action,  the  lord  could  reclaim  the 
fief  from  the  vassal  by  judicial  action  ;  and  according  to  the  earlier 
and  stricter  law  this  would  bind  also  the  feoffee's  heirs.  Simi- 
larly, the  lord  might  forfeit  his  rights  by  a  breach  of  faith,  a  denial 
of  the  tenant's  rights,  or  by  dispossessing  the  tenant,  etc.  In  these 
cases  the  estate  fell  to  the  vassal,  and  he  passed  it  to  his  heirs 
released  from  all  feudal  obligations;  but  the  lord  retained  the 
right  of  escheat. 

§48.    The  Modern  Feudal  Law.     (I)    The  Common  Law.  —  (1) 
The  Lombard  law  was  received  as  a  common  and  subsidiary  law 
1  Schroder,  "Lehrbuch"  (5th  ed.),  425. 
341 


§48]  THE    LAW    OF   THINGS  "[BoOK    II 

in  feudal  relations  beginning  with  the  second  half  of  the  1400  s, 
notwithstanding  that  the  German  feudal  law  had  itself  reached 
a  mature  and  rich  development.  The  evident  cause  for  this  was 
that  the  Lombard  book  of  feudal  law,  the  "  Liber  "  or  "  Consue- 
tudines  feudorum  "/  had  been  embodied  in  the  "  Corpus  luris 
Civilis  "  as  a  so-called  "  decima  collatio  novellarum  ",  and  there- 
fore shared  the  fortunes  of  that  Code.  Moreover,  the  Lombard 
feudal  law  had  been  developed  by  Italian  theorists  upon  the 
basis  of  the  feudal  statutes  of  the  emperors  Konrad  II,  Lothar 
III,  and  Frederick  I,  and  the  differences  between  it  and  the  Ger- 
man could  easily  be  harmonized.  At  the  same  time  the  existing 
sources  of  the  native  feudal  law  maintained  their  local  authority 
in  the  face  of  the  new  common  law ;  especially  in  the  regions  of 
the  Saxon  law  the  old  practices  continued  in  many  important 
matters.  The  common  feudal  law  was  on  one  hand  furtlier  de- 
veloped In  a  unitary  sense  by  theory,  which  cultivated  it  zealously 
as  a  special  branch  of  legal  science ;  and  on  the  other  hand  It  was 
supplemented  in  a  particularistic  sense  by  the  feudal  statutes 
issued,  even  In  modern  times,  in  many  of  the  imperial  Territories. 
Among  these  statutes  the  most  noteworthy  are  an  edict  of  1764 
of  Electoral  Saxony,  and  the  comprehensive  feudal  legislation 
of  the  Prussian  "  Landrecht,"  which,  in  Suarez's  words,  constituted 
"  a  lus  feudale  universale  in  the  philosophic  sense  " ;  that  is,  a 
subsidiary  common  feudal  law  supplementary  to  the  Lombard 
systems.  These  were  followed  by  the  Baden  Feudal  Act  ("  Lehns- 
gesetz  ")  of  1807,  and  the  Bavarian  Feudal  Edict  of  1808. 

(2)  Variant  Institutes.  —  The  common  feudal  law  was  dis- 
tinguished chiefly  In  the  following  respects  from  the  older  Ger- 
man law. 

Movables,  provided  their  substance  or  their  value  was  assured 
of  permanence,  and  money  (the  profits  of  an  assured  capital) 
were  recognized  as  objects  of  feudal  tenure. 

The  requirement  of  the  personal  presence  of  lord  and  vassal  in 
the  act  of  investiture  was  allowed  to  lapse ;  only  a  few  State  stat- 
utes retained  It. 

Under  the  influence  of  the  Lombard  law  there  were  developed 
from  the  forms  of  feoffment  by  contract  ("  Gcdinge  ")  recognized 
in  the  German  law,  —  either  of  definite  lands  or  of  undetermined 
reversions,  —  the  two  Institutes  of  feudal  rights  In  expectancy 
("  Lehnsanwartschaft  ")  and  feoffments  in  reversions  ("  Eventual- 

'  See,  on  its  origins,  A'.  Lchmann,  "Das  langobardische  Lehnrecht" 
(1896). 

342 


Chap.   VII]  THE    LAW    OF    LAND  :     REAL    RIGHTS  [§  48 

belehniing  ").  These  became  of  great  importance  In  the  history 
of  the  imperial  Territories,  inasmuch  as  they  determined  dynastic 
succession  to  the  throne  in  case  of  the  extinction  of  a  Territorial 
dynasty. 

Feudal  rights  in  expectancy  were  granted  either  in  a  particular 
fief  ("  exspectativa  feudalis  specialis  ")  or  in  the  first  fief  which 
should  escheat  ("  exspectativa  feudalis  generalis  ")  or  in  any  fief 
whatever  {"  exspectativa  feudalis  indeterminata  ").  They  secured 
to  the  holder  of  such  future  estate,  without  any  investiture,  a 
contractual  right  against  the  lord  to  investiture  upon  fulfillment 
of  a  condition.  This  right  was  inherited,  according  to  the  rules 
of  succession  of  the  private  law,  by  those  heirs  of  the  expectant 
who  were  capable  of  feudal  services ;  and  the  corresponding  legal 
duty  of  the  lord  descended  to  his  successors.  Of  several  rights 
in  expectancy  the  oldest  took  precedence,  without  distinction 
between  special  and  general  rights. 

The  feoffment  of  a  reversion  ("  Eventualbelehnung  "),  on  the 
other  hand,  like  the  old  "  donatio  post  obitum  ",  involved  an 
immediate  investiture,  either  of  a  definite  fief  when  it  should 
escheat  or  of  the  first  one  that  should  fall  vacant ;  it  therefore 
conveyed  immediately  to  the  grantee  a  real,  —  albeit  a  qualified, 
—  right  in  expectancy  ("  Wartrecht  ").  The  instant  the  condi- 
tion was  fulfilled  the  right  of  the  feoffee  became  unqualified ;  he 
did  not  need  to  seek  a  new  feoffment.  Such  rights  of  feoffment 
in  a  reversion  were  also  heritable  by  the  heirs  of  the  two  parties, 
and  according  to  the  rules  of  feudal  succession. 

When  a  feoffment  in  a  reversion  conflicted  with  a  right  in  ex- 
pectancy the  former  took  precedence.  Among  several  feoffments 
in  a  reversion  the  earliest  had  preference. 

As  for  feoffments  of  several  persons,  in  many  regions  the  princi- 
ples of  the  Lombard  institute  of  co-feoffment  {"  coinvestitura  ") 
were  adopted.  These  were  totally  different  from  the  principles 
of  the  Germanic  institute  of  collective  hand,  and  secured  to  each 
vassal  an  ideal  quotal-share  in  the  fief.  In  such  enfeoffments 
there  was  no  benefit  of  survivorship  among  the  co-feoffees ;  on 
the  contrary  they  could  not  receive  a  share  of  a  deceased  liegeman 
unless  they  otherwise  possessed  a  right  to  inherit  from  him,  by 
reason  of  kinship  or  a  contract  of  investiture  in  a  particular  fief. 

Unlike  the  German  law,  the  Lombard  feudal  law  recognized 
tenurial  relations  originating  in  extinctive  prescription  ("  Ver- 
jahrung  ")  in  those  cases  where  one  had  possessed  a  fief  for  thirty 
years  with  good  faith  in  both  parties,  and  had  rendered  feudal 

343 


§  4S]  THE    LAW    OF   THINGS  [BoOK   II 

services  from  it  (so-called  **  feudum  informe  ").  This  principle 
passed  over  into  the  common  feudal  law  and  into  many  of  the 
modern  regional  systems,  the  period  being  reduced  in  tlie  practice 
of  the  common  law  to  ten  or  to  twenty  years.  Still  later  statutes 
repudiated  the  institute. 

The  real  rights  of  tlie  lord  and  of  the  vassal  were  classified  by 
theorists  under  the  concepts  of  "  superior  "  and  "  subordinate  " 
ownership  (supra,  p.  232  ct  seq.).  As  regards  restrictions  upon 
alienation  by  the  vassal,  imposed  in  the  interest  of  the  lord,  the 
strict  view  of  the  German  law  was  preferred  in  the  common  law, 
the  original  and  more  favorable  viewpoint  of  the  Lombard  law 
having  already  been  abandoned,  on  this  point,  in  the  feudal 
statutes  of  Lothar  III  and  Frederick  I.  On  the  other  hand,  the 
common  feudal  law  required,  for  conveyance,  not  only  the  con- 
sent of  the  lord  but  also  the  consent  of  the  agnates  and  of  co- 
feoft'ees  and  feoffees  of  reversions  ("  Eventualbelchnten  ").  These 
also  possessed  a  revocatory  action  in  case  of  an  improper  aliena- 
tion ;  not,  however,  one  unlimited  as  to  time,  such  as  the  lord 
originally  possessed,  but  one  available  within  a  prescriptive  period 
of  thirty  years.  If  the  lord  reclaimed  the  fief  by  means  of  a  revo- 
catory action  it  remained  in  his  hands  only  so  long  as  the  alienor 
and  his  descendants  capable  of  feudal  service  might  live.  After 
their  death  the  rights  of  the  agnates  and  of  co-feoffees  and  feoffees 
in  the  reversion  became  effective.  In  addition  to  a  right  of  revo- 
cation the  feoffor  and  his  successors  possessed  the  feudal  preferen- 
tial right  of  purchase  ("  Lehnsretrakt  ",  "  retractus  feudalis  "), 
which  was  unknown  to  the  classical  feudal  law  of  Germany,  and 
by  means  of  wliich  they  could  reclaim  the  land  from  any  third 
person  subject  to  repayment  of  the  purchase  price.  Whereas 
the  Lombard  law  conceded  to  the  issue  of  the  alienor  neither 
a  right  of  revocation  ("  Retraktionsrecht  ")  nor  a  preferential 
right  of  purchase  ("Retraktrecht"),  both  of  these  were  conceded 
to  them  in  various  particularistic  systems,  and  in  the  practice  of 
the  common  law;  others  of  the  regional  systems,  on  the  other 
hand,  restricted  the  right  of  preferential  purchase,  or  totally  abol- 
ished it  while  conceding  other  remedies  in  its  place. 

The  theory  of  "feudal  liabilities  ",  — that  is  liabilities  "of 
the  fief  "  (" Lehnsschulden  "),  —  was  first  developed  in  the  theory 
of  the  common  law.  Feudal  liabilities  w(Te  distinguished,  in  it, 
from  those  liabilities  which  bound  only  the  allodium  of  the  vassal 
(to  whom  the  fruits  of  the  fief  belonged),  and  which  were  always 
inherited  by  his  descendants,  but  by  his  agnates  only  when  they 

344 


Chap.  VII]  THE   LAW   OF   LAND  :     REAL   RIGHTS  [§  48 

were  his  universal  successors.  Feudal  liabilities  were  liabilities 
assumed  in  the  interest  or  for  the  improvement  of  the  fief.  They 
passed  with  this  to  successors  in  possession,  who  thereby  became 
responsible  for  them  only  to  the  extent  of  the  fief's  value,  and  not, 
or  at  least  only  secondarily  ("  debita  feudalia  subsidaria  "),  with 
the  allodium  ;  they  were  not  a  charge  upon  the  fee  of  the  heir. 

Feudal  liabilities  imposed  by  law  ("  debita  feudalia  legalia  ") 
included,  in  the  first  place,  those  contracted  by  the  first  pos- 
sessor in  order  to  acquire  the  fief  for  himself  and  his  family, 
and  to  increase  its  extent ;  these  feudal  debts  passed  only  to  such 
possessors  of  the  fief  as  derived  their  possession  from  the  feoff- 
ment of  the  first  possessor,  —  whence  they  were  "  debita  feudalia 
respectiva  ",  as  contrasted  with  those  that  were  "  absoluta  ", 
which  last  were  effective  against  everyone  who  acquired  the  fief. 
They  included,  further,  debts  which  were  contracted  to  maintain 
the  feudal  estate  in  its  original  extent  or  condition  or  for  the  re- 
demption of  the  rights  of  co-heirs ;  also,  later,  hypothecs  imposed 
upon  the  land  with  the  consent  of  the  lord  and  the  agnates ;  and 
also  certain  statutory  obligations  of  the  successors  in  the  fief. 
Examples  of  the  last  were  the  living  ("  Alimentation  ")  allowed 
by  the  common  law  to  needy  persons  next  in  expectancy,  but 
who  were  excluded  from  succession  because  of  bodily  defects ; 
costs  of  burial,  support  ("  Unterhalt  ")  and  dowry  allowed  in 
the  regional  systems  to  needy  daughters ;  and  dower  ("  Leib- 
gedinge  ",  "  Wittum  ")  allowed  to  widows.  In  addition  to  these, 
still  other  debts  could  be  declared  liabilities  of  the  fief  with  the 
consent  of  all  living  agnates  and  successors  thereto  ("  debita 
feudalia  consensuata  ").  Among  feudal  debts  belonged  also  the 
so-called  "  constitutum  feudale  "  ("  Lehnsstamm  ")  ;  a  capital 
permanently  invested  in  a  feudal  fief  the  rents  from  which  were 
inherited  according  to  the  feudal  law. 

The  rules  regulating  succession  to  the  fief  differed  in  especial 
degree  from  those  of  the  older  German  law.  Unlike  this,  the 
Lombard  law  conceded  a  right  of  inheritance  in  the  fief  not  only 
to  the  issue  of  the  last  possessor,  but  also  to  his  "  agnates  ",  his 
collaterals  of  the  male  line ;  although  this  was  accorded  them 
only  so  far  as  they  were  descendants  of  the  first  acquirer,  — i.e. 
only  to  persons  to  whom  the  fief  was  "  feudum  paternum."  To 
be  sure  this  could  be  altered,  "per  gratiam  domini",  to  the  extent 
of  conceding  a  right  of  succession  to  collateral  kindred  who  were 
not  descendants  of  the  first  acquirer  ("  feudum  novum  ex  iure 
antiqui  concessum  ").     This  alien  law  was  received  in  Germany. 

345 


§  48]  THE    LAW    OF    THINGS  [BoOK   II 

From  the  contractual  extension  of  the  rights  of  coHaterals,  men- 
tioned above,  there  was  {levelo])e(l  in  IVIecklenburg  the  right  of 
so-called  "  Reversal  "-cousins  :  that  is,  cousins  who  were  appointed 
successors  in  deed  of  feoffment  upon  the  basis  of  the  "  Rever- 
salen  "  of  1()21.  It  was  only  in  the  countries  of  tlie  Saxon  law 
that  men  clung  to  the  native  view,  recognizing  rights  of  inheri- 
tance in  the  "  agnates  "  only  when  the  feoffment  was  made  to 
them  collectively ;  the  institute  then  becoming,  in  such  cases, 
"  a  mere  substitute  for  agnatic  succession."  ^ 

The  order  of  inheritance  under  the  feudal  law  was  essentially 
a  special  succession  in  a  feudal  estate,  distinguished  from  the 
allodium  as  a  "special  "  estate;-  in  doctrinal  literature  it  was 
frequently  conceived  of  as  a  so-called  "  successio  ex  })acto  et 
providentia  maiorum  ",  —  by  which  was  meant  that  the  feudal 
heir  was  not  the  heir  of  the  last  possessor  but  of  the  first  acquirer. 

These  different  princii)les  of  feudal  and  allodial  succession,  — 
and  also  escheat,  or  the  bankruptcy  of  the  vassal,  —  might  make 
necessary  the  separation  of  the  fief  from  the  fee.  For  this  reason, 
and  in  case  a  simple  real  partition  could  not  be  made,  special 
rules  were  developed  regulating  the  institute  of  feudal  jKirtition. 
The  special  guardianship  of  the  lord  over  a  minor  tenant  disap- 
peared at  an  early  day.  Such  an  institute  was  unknown  also 
to  the  common  feudal  law.  Only  in  some  of  the  particularistic 
sj'stems  do  we  find  a  special  feudal  guardian ;  he  acts  as  the  holder 
of  the  fief  ("  LehnstrJiger  "),  whereas  the  administration  of  the 
fief  is  incumbent  upon  the  guardian  of  tlic  allodium. 

Finally,  as  regards  the  termination  of  the  feudal  relation,  all 
other  causes  thereof  became  in  the  modern  i)eriod  progressively 
less  important  in  comparison  with  contracts  or  statutes  which 
abolished  feudal  lordship  ("  Allodifikation  ")  and  statutes  that 
completely  abolished  feudal  relations  generally. 

(II)  The  Decay  of  the  Feudal  Law.  —  As  early  as  the  second 
half  of  the  Middle  Ages  there  set  in  a  decay  of  the  feudal  system 
which  continued  uninterruptedly  through  the  following  centuries. 
True,  the  feudal  character  of  the  imperial  Territories  was  main- 
tained until  the  dissolution  of  the  old  Empire,  —  an  indication 
of  its  weakness,"'  —  but  feudalism  was  forced  to  yield  step  by  step 
before  the  strengthening  conception  of  the  modern  State.  Grants 
were  no  longer  made  of  public  powers  and  of  rights  of  sovereignty 
as  feudal  holdings;   these  were  made,  instead,  the  basis  of  State 

'  Gierke  in  Holtzendorff-Kohler,  500. 
»  Ibid.,  502.  3  Ibid.,  497. 

346 


Chap.  VII]  THE    LAW    OF    LAND:     REAL    RIGHTS  [§48 

offices.  Feudal  military  service,  once  the  leading  feature  of 
the  entire  institute,  lost  its  importance  owing  to  changes  in  the 
mode  of  conducting  war  with  the  appearance  of  mercenary  and 
standing  armies.  The  protection  which  the  lord  was  bound  to 
give  his  vassals  lost  its  value  with  the  growth  of  a  general  State 
citizenship.  The  feudal  supremacy  of  the  Territorial  princes 
grew  into  a  State  sovereignty,  and  subjection  to  the  feudal  power 
of  another  than  the  ruler  of  the  State  no  longer  appeared  recon- 
cilable with  the  latter's  position.  Wherefore,  even  in  the  time  of 
the  old  Empire,  the  Territorial  rulers  began  to  redeem  seigniorial 
privileges  and  undertake  the  allodification  of  fiefs.  Among 
others,  Frederick  William  I  of  Prussia,  who  by  a  statute  of 
January  5th,  1717,  ordered  the  abolition  of  all  nobiliary  and  villein 
("  Bauer-")  tenures  and  feudal  rights  of  judicature  ("  Schulzen- 
lehn  ")  in  exchange  for  a  money  compensation ;  a  statute  which, 
to  be  sure,  was  only  slowly  and  incompletely  enforced.  The 
only  exceptions  were  crown-fiefs  and  heritable  feudal  offices 
("  Erbamterlehn  ")  ;  "  feuda  extra  curtem  "  (fiefs  situated  outside 
the  kingdom),  and  reversionary  {"  beanwartschaftete  ")  tenures. 
The  purely  private  side,  also,  of  the  feudal  law  "  shrank  to  a 
special  law  of  particular  estates  " ;  it  became  "  for  the  most  part 
a  mass  of  principles  derived  from  abandoned  premises."  ^ 

Before  the  disappearance  of  the  Holy  Roman  Empire  feudal 
relations  had  come  to  be,  in  fact,  "  a  long-since  antiquated  system, 
whose  material  basis  had  lost  all  vitality,  and  which  was  filled 
with  countless  details  elaborated  with  theoretical  subtlety,  and 
therefore  correspondingly  provocative  of  controversy."  ^  The 
rickety  structure  collapsed  as  soon  as  it  was  touched  by  the  ideas 
of  the  French  Revolution. 

In  France  the  feudal  regime  including  all  feudal  tenurial  relations 
("  Lehnswesen  ")  had  been  swept  away  by  the  Decree  of  the  Na- 
tional Assembly  of  August  4th,  1789.  The  principles  of  the  French 
statutes  were  introduced  into  all  those  parts  of  Germany  which 
were  then  a  part  of  France ;  and  after  the  end  of  the  French 
occupation  they  were  only  in  part  repealed.  This  is  the  reason 
why  in  those  regions,  for  example  in  Alsace-Lorraine  and  in  the 
Prussian  Rhineland,  the  feudal  order  is  completely  antiquated 
and  forgotten  :  with  reference  to  them  one  can  speak  of  the  feudal 
law  only  in  a  historical  sense. 

But  even  in  most  of  the  other  parts  of  Germany  a  fundamental 

'  Gierke  in  Hollzendorff-Kohler,  497. 
2  Franken,  "Privatrecht ",  274. 

347 


§  4S]  THE    LAW    OF    THINGS  [BoOK   II 

change,  although  not  so  radical,  was  ell'ected  in  the  course  of  the 
ISOO  s,  especially  in  consequence  of  the  revolutionary  movement 
of  1848  and  the  demand  made  in  the  Fundamental  Rights  of  that 
year  for  the  abolition  of  all  feudal  relationships.  Tenure,  so  far 
as  it  existed  under  the  public  law,  was  everywhere  abolished ;  the 
feudal  supremacy  of  the  "  superior  "  owner,  and  therewith  the 
restrictions  upon  alienation  and  powers  of  retractive  purchase 
which  existed  in  his  interest,  ceased  absolutely  to  be  observed. 
IMoreover,  a  further  step  was  taken  toward  the  allodification  of 
all  land  by  forbidding  the  creation  of  new  fiefs.  In  Prussia,  the 
"  Landrecht  "  had  still  recognized  that  right,  subject  to  the  ap- 
proval of  the  sovereign,  but  the  constitution  of  January  1st,  1850, 
provided  in  Article  40  :  "  The  creation  of  feudal  holdings  ...  is 
forbidden.  Existing  fiefs  .  .  .  shall  be  converted  into  free  own- 
ership under  statutory  provisions."  Only  in  the  case  of  crown 
fiefs,  i.e.  those  granted  directly  by  the  king,^  and  "  feuda  extra 
curtem  "  was  a  "  temporary  "  exception  made  (Art.  41).  These 
principles  were  given  effect  in  statutes  of  ]\Iarch  2d,  1850,  and 
June  5th,  1852.  The  first  abolished  throughout  the  kingdom 
the  "superior"  ownership  of  the  feudal  law  and  all  the  rights 
directly  derived  therefrom,  without  compensation,  but  with  the 
same  exceptions  of  royal  and  foreign  fiefs.  The  second  provided 
that  existing  fiefs  should  be  redeemed  under  statute.  The  result 
of  this  was  the  extinction  of  the  rights  of  holders  of  future  interests 
in  the  fiefs  ("  Lehnsanwiirter  "),  subject  to  money  compensation, 
in  so  far  as  existing  fiefs  were  not  converted  into  family  fideicom- 
missa.  Special  statutes  were  later  issued  in  different  provinces 
of  the  Kingdom  for  the  enforcement  of  the  Act  of  1852. 

A  similar  development  took  place  in  almost  all  the  other  Ger- 
man States,  including  Ba\'aria,  Wiirttemberg,  Saxony,  Baden,  and 
Hessia.  Everywhere  the  fief  was  transformed  into  an  institute 
similar  to  a  family  fideicommissum.  With  reference  to  these 
rights  the  rules  derived  from  the  old  conception  of  "  subordinate  " 
ownership,  —  feudal  order  of  succession,  rights  of  agnates,  feudal 
alienations,  feudal  i)artitions,  and  feudal  debts,  —  still  retain 
authority.  Only  in  a  few  States  does  the  feudal  law,  as  such,  still 
exist :   in  Mecklenburg,-  Lippe,  Waldeck,  Reuss  ii.  L. 

1  These  include  in  Prussia  the  Silosian  principalities  of  Sagan,  Oels, 
Tropp.au.  and  Jiij^crndorf,  the  prinfipality  of  Krotosohin  in  Posen,  the 
fiefs  of  the  "mediatized"  ])rin('('.s  and  counts  of  Stolberfj,  Wittgenstein, 
Hohcii-Solms,  Solnis-Iirauiifcls,  and  Wicd. 

2  In  Mecklenhurg-Scinvcrin  there  are  still  iilH)  feudal  tenants  ("Lehns- 
besitzer"),  as  compared  with  557  owners  of  allodial  estates;  in  Mecklea- 

348 


Chap.  \llj  THE    LAW    OF    LAND  :     REAL    RIGHTS  [§  49 

In  SO  far  as  remnants  of  the  feudal  law  do  still  exist  their  regu- 
lation has  been  reserved  by  the  Civil  Code  to  State  law  (EG,  §  59). 

Topic  2,    Servitldes 

§  49.  Servitudes  in  General.  (I)  The  Older  Law.  —  The  con- 
ception of  servitudes  ("  Dienstbarkeiten  ",  "  Servituten  ")  as 
an  independent  group  of  real  rights  was  unknown  to  the  Germanic 
law  in  its  original  form.  It  was  only  through  the  Reception 
that  it  acquired  importance  in  the  legal  life  of  Germany.  The 
Roman  servitude  was  a  real  right  of  usufruct  existing  in  a  thing 
belonging  to  another.  It  was  a  predial  servitude  when  this  usu- 
fructuary right  served  the  interests  of  land,  a  personal  servitude 
wlien  it  served  those  of  a  person.  Servitudes  were  originally 
the  only  "  iura  in  re  aliena  "  of  the  Roman  law ;  pledges,  emphy- 
teusis, and  superficies  first  appeared  later.  Personal  servitudes 
remained  few  in  number  and  restricted  to  certain  definite  types : 
"  ususfructus  ",  "  usus  ",  "  habitatio  ",  and  "  operse."  Servi- 
tudes, including  the  emphyteusis  and  superficies,  were  the  only 
form  in  which  the  Roman  law  could  apportion  the  usufruct  value 
of  a  thing  ("  Gebrauchswert  ")  between  several  holders  of  rights 
therein. 

Under  the  totally  different  conditions  of  fact  and  law  prevailing 
in  the  Middle  Ages,  the  rich  development  of  tenurial  ("  Leihe-") 
rights  and  tlie  numerous  real  rights  and  restrictions  upon  ownership 
which  remained  from  older  collective  ownership  solved  in  a  far 
more  comprehensive  manner  the  problems  with  which  servitudes 
were  created  to  deal  in  the  Roman  law.  At  the  same  time,  there 
also  existed  in  the  INIiddle  Ages  legal  relations  based  upon  juristic 
acts  ("  Rechtsgeschafte  ")  which  resembled  the  Roman  servitude, 
and  by  which  limited  rights  of  usufruct  were  created  in  rural  and 
urban  lands  as  special  and  peculiar  rights  in  things  belonging 
to  others,  distinct  from  ownership.  Such  rights  could  be  given 
any  content  at  will ;  and  could  be  created  in  favor  of  lands,  of 
individuals,  or  of  groups;  nor  did  men  scruple  to  recognize  the 
alienability  and  heritability  of  such  rights.  To  this  was  added 
the  fact  that  the  idea  of  ownership  merely  for  life  gradually  lost 
vitality.     The  Sachsenspiegel  already  contrasted  ownership,  not 

l)urg-Strelitz  .58,  as  against  22  allodial  owmers.  However,  the  IMecklen- 
burg  fiefs,  along  with  many  other  i)e('uliarities,  have  always  been  peculiar 
in  that,  when  not  freely  alienal)le  and  chargeable,  they  are  "feiida  impro- 
pria  ",  and  are  therefore  very  like  allodial  estates.  See  r.  Buchka,  "  Landes- 
privatrecht  der  Grossherzogtiimer  M.-Sehw.  iind  M.-Str."  (1905),  129. 

349 


§  49]  THE    LAW    OF   THINGS  [BoOK   II 

witli  the  conception  just  referred  to,  but  with  a  lifelong  right  to 
maintenance  ("  Leibzucht  "),  as  a  limited  independent  real  right 
of  usufruct;  for  example,  the  "  Leibzucht  "  of  a  surviving  spouse 
in  the  property  of  his  or  her  deceased  fellow. 

Thus  the  German  law,  also,  did  succeed  in  developing  its 
own  real  rights  of  usufruct  in  the  property  of  others;  but  these 
rights  were  neither  sharply  distinguished  conceptionally  from  its 
many  other  privileges  of  usufruct  nor  did  they,  as  compared  with 
the  latter,  play  anything  like  so  important  a  role  as  did  the  servi- 
tudes of  the  Roman  law. 

(II)  The  Modem  Law.  —  With  the  reception  of  the  Roman 
law  acquaintance  was  made  with  its  simple  servitude  concept,  and 
an  etl'ort  was  made  to  ai)ply  this  to  the  usufructuary  rights  of 
the  native  law.  Here  too,  this  process  was  not  realized  without 
violence  to  the  German  law ;  and  here  too  the  result  was  a  theory 
which  neither  exactly  conformed  to  the  Roman  nor  did  justice 
to  the  German  law.  The  assumption  of  a  peculiar  "  servitus 
iuris  germanici  ",  as  one  different  from  the  Roman,  was  nothing 
else  than  a  confession  of  embarrassment.  Peculiarities  of  the 
German  law  were  forced,  for  the  most  part,  within  the  rules  of 
the  Roman  servitude,  as  regarded  their  nature,  origin,  and  ter- 
mination. 

(1)  With  reference  to  the  nature  of  servitudes,  there  were  classi- 
fied under  that  concept : 

(A)  The  I'KiviLEGES  OF  MARKMEN  in  the  commons  and  of  the 
LORD  in  the  land  let  to  his  free  tenants,  which  were  derived  from 
old  relations  of  community  and  lordship.  From  the  standpoint  of 
the  Roman  law  this  was  wrong,  for  it  had  always  strictly  enforced 
the  principle  "  nulli  res  sua  servit."  It  was  therefore  regarded 
as  a  peculiarity  of  the  German  law  of  servitudes  that  there  was 
no  place  in  it  for  the  Roman  rule.  There  resulted  from  the  system 
of  land  registry,  as  a  further  exception  to  that  rule,  an  owner's 
("  Eigentiimer  ")  servitude,  similar  to  the  proprietary  hypothec 
(infra,  §  54). 

(B)  In  the  second  place,  there  were  known  to  the  older  native 
lawmany  BURDENS  upon  lands  that  obligated  the  occupant  of  lands 
to  positive  acts;  this  was  true  particularly,  of  land  cnAR(iES 
("  Reallasten  "  ;  infra,  §  51).  The  Roman  law,  on  the  contrary, 
restricted  the  content  of  the  servitude  to  a  sufferance  (of  another's 
act)  or  an  abstention  (from  acts  on  one's  own  part),  —  "  servitus 
in  faciendo  consisterig  nequit  ",  —  inasmuch  as  it  was  only  a  right 
to  the  use  of  a  thing  and  not  a  right  against  a  person ;   and  only 

350 


Ch.\P.   VII]  THE    LAW    OF    LAND  I     REAL    RIGHTS  [§  49 

unwillingly  made  an  exception  in  favor  of  the  ''  servitus  oneris 
ferendi."  The  Germanic  view,  however,  made  impossible  the 
consistent  application  of  the  Roman  principle.  Servitudes  were 
recognized  which  involved  positive  actions  on  the  part  of  the 
obligee ;  provided  such  was  not  the  predominant  element  of  the 
servitude,  but  merely  one  supplementary  to  another  main  obli- 
gation, —  e.g.  the  obligation  to  maintain  in  condition  a  way  in 
connection  with  a  servitude  of  way.  The  obligation  ("  Last ", 
charge)  to  permit  the  continuance  of  an  existing  structure  in 
favor  of  another  person  was  no  longer  regarded,  as  it  was  in  the 
Roman  law,  as  an  exception. 

(C)  In  the  Roman  law  there  were,  as  already  remarked,  only 
four  types  of  personal  servitudes.  In  Germany  the  law  was  not 
restricted  to  these,  but  continued  after  the  Reception  to  recog- 
nize as  such  any  right  of  usufruct  whatever,  whether  a  predial 
or  a  personal  servitude.  Nor  were  the  other  limitations  of  the 
Roman  law  accepted  in  any  greater  degree,  —  namely,  that  real 
("  Grund-")  servitudes  were  only  such  as  secured  an  advantage 
in  the  user  of  the  dominant  tenement,  and  not  a  personal  advan- 
tage to  each  temporary  occupant  thereof  {e.g.  a  permission  to 
paint  upon  the  servient  tenement),  and  that  personal  servitudes 
were  strictly  confined  to  the  person  of  the  individual  thereto  en- 
titled, and  so  could  neither  be  conveyed  nor  inherited.  This 
unlimited  content  of  the  servitude  concept,  which  characterized 
equally  the  common  lawand  the  regional  systems,  completely  burst 
the  servitude  concept  of  the  Roman  law.  Even  limitations  upon 
industry,  and  rights  of  execution  and  of  ban  were  recognized  as 
servitudes. 

The  new  Civil  Code  has  returned,  for  the  first  time,  and  as 
regards  most  of  the  points  above  referred  to,  to  the  theory  of 
the  pure  Roman  law.  Only  the  owner's  servitude  has,  at  least, 
not  been  wholly  excluded  by  it ;  similarly,  it  has  retained  obliga- 
tions to  perform  positive  acts  (§§  1021-22),  while  it  has  rejected 
(§  1090)  the  restriction  of  personal  servitudes  to  definite  types. 
Among  personal  servitudes  it  has  developed  "  Niessbrauch " 
(profits  without  user)  into  an  entirely  independent  institute, 
which  is  regulated  in  essentials  by  the  Roman  rules.  The  corre- 
sponding usufructuary  rights  ("  Nutzungsrechte  ")  of  the  Ger- 
manic law  continue,  in  part,  to  exist  in  the  Civil  Code  in  the 
"  Nutzniessung  "  (rights  of  management  and  user,  true  usufruct) 
of  the  family  law ;  and  partly  in  special  usufructuary  rights  whose 
regulation  is  reserved  to  state  legislation ;    for  example,  rights 

351 


§  49]  THE    LAW    OF   THINGS  [BoOK  II 

to  the  parents'  portion  ("  Altenteilsrechte  ").  The  Swiss  Civil 
Code  contains  an  elaborate  regulation  of  rights  of  management 
and  usufruct.     It  also  recognizes  owner's  servitudes. 

(2)  The  rules  concerning  the  creation  of  servitudes  were  simi- 
larly modified,  in  many  respects,  b}'  the  influence  of  native  legal 
principles. 

(A)  As  regards  servitudes  that  were  generally  created  by 
JURISTIC  ACT,  the  older  Germanic  laws  required  for  their  creation 
execution  in  court ;  and,  in  the  cities,  frequently  entry  in  the 
town-register.  These  forms,  however,  were  unable  to  hold  their 
ground  save  in  a  few  localities.  So  too  in  modern  land-registry 
statutes  the  entry  of  real  servitudes  has  seldom  been  made  an 
indispensable  requirement,  although  it  is  such  under  the  Austrian 
Code  and  in  the  greater  part  of  Mecklenburg.  A  few  legal  sys- 
tems based  at  least  the  effectiveness  of  the  servitude  as  against 
third  parties  upon  registry.  But  most  of  them  entirely  excepted 
real  servitudes  from  the  compulsion  of  registry  (Prussia).  In  the 
common  law,  also,  according  to  the  best  opinion,  a  simple  and 
formless  agreement  was  sufficient.  In  this  point  the  Civil  Code 
has  returned  to  the  old  Germanic  principle :  it  requires  registra- 
tion of  every  real  servitude  that  is  created  by  a  juristic  act  (§  873). 
The  same  is  true  of  personal  servitudes  existing  only  in  connec- 
tion with  lands,  as  well  as  of  a  usufruct  that  is  created  in  land 
(§  873) ;  but  such  a  usufruct  in  chattels  is  created  by  a  transfer 
of  possession.  Therefore,  the  bequest  of  a  usufruct,  which  often 
occurs,  and  which  under  the  older  Germanic  law  immediately 
gave  rise  to  the  usufruct,  now  conveys  merely  a  claim  for  its 
creation. 

(B)  Servitudes  arising  by  acquisitive  prescription  ("  Ersit- 
zung  ")  did  not  exist  in  the  older  Germanic  law.  However,  aside 
from  the  idea  that  everything  that  had  existed  as  a  right  ("  zu 
Recht  ")  since  immemorial  time  is  therefore  a  legal  right  ("  Rech- 
tens"),  the  principle  of  judicial  seisin  (supra,  p.  201)  applied  :  who- 
ever had  exercised  a  servitude  for  a  year  and  a  day  tlicreby  ac- 
quired that  favored  status  in  litigation  which  resulted  from  judicial 
seisin.  The  Roman  law  recognized  a  servitude  acquired  by  posi- 
tive prescription,  the  precondition  of  which  was  an  uninterrupted 
and  rightful  legal  possession,  exercised  in  good  faith  for  ten  or 
twenty  years.  This  acquisitive  prescription  was  adopted  in 
Germany,  although  it  was  modified  at  many  points  by  (e.g. 
as  regards  the  prescription  period)  the  particularistic  systems. 
Wherever,  also,  a  land-book  system  existed  men  clung  to  this 

352 


Chap.  VII]  THE   LAW   OF   LAND  :     REAL   RIGHTS  [§  50 

institute;  where  compulsory  registration  prevailed,  such  posses- 
sion was  for  the  most  part  recognized  as  at  least  sufficient  title 
to  justify  registration.  On  the  other  hand,  the  Civil  Code  has 
excluded  the  acquisitive  prescription  of  unregistered  servitudes, 
while  recognizing  such  prescription  of  registered  servitudes  ("Tabu- 
lar "-prescription)  exactly  as  in  the  case  of  ownership  and  all 
other  registered  real  rights.  Similarly,  the  Swiss  Civil  Code; 
although,  to  be  sure,  this  also  recognizes  in  this  connection  an 
extraordinary  prescriptive  acquisition  without  registry,  —  namely, 
v/hen  the  land  charged  therewith  is  itself  not  entered  in  the  land- 
book  (§  G62). 

(C)  Whereas  the  older  Germanic  law  recognized  statutory 
SERVITUDES  (for  example,  in  many  legal  systems  a  surviving  spouse 
had  a  right  of  usufruct  for  life  —  "  Leibzucht  "  —  by  rule  of 
law,  in  the  property  of  the  deceased  mate)  the  Civil  Code  has  done 
away  with  all  statutory  pure  profits  ("  Niessbrauch  "  :  "  ius  fru- 
endi  "  only),  while  permitting  the  continuance  of  certain  statutory 
rights  of  use  and  profits  ("  Nutzniessung  "  :  "  ius  utendi  "  and  "  ius 
fruendi"),  which,  as  already  mentioned,  represent  the  continuation 
of  the  ancient  rights  of  lifelong  maintenance  ("  Leibzuchts- 
rechte  ")  just  mentioned.  The  Swiss  Civil  Code  also  recognizes 
certain  statutory  rights  of  use  and  profits,  the  registration  of  which 
is  alone  necessary  in  order  to  make  them  effective  against  third 
persons  claiming  in  good  faith. 

(3)  Termination.  —  One  consequence,  already  adverted  to,  of 
the  Germanic  view  was  that  the  union  of  the  dominant  with  the 
servient  tenement  did  not  necessarily  cause  the  destruction  of  the 
servitude  (owner's  servitude) .  The  modern  law  of  servitudes  recog- 
nized an  extinctive  prescription  of  servitudes  exactly  as  it  recog- 
nized an  acquisitive  prescription ;  and  these  are  still  recognized 
in  the  Civil  Code  as  resulting  from  registry  in  the  land-book 
("  book  "-prescription),  and  even,  under  some  circumstances, 
as  against  the  register  itself  (§  1028,  pars.  1,2).  On  the  other  hand, 
the  Swiss  Civil  Code  allows  a  termination  of  servitudes  under  no 
circumstances  except  by  cancellation  in  the  land-book  (§  734). 
Termination  of  such  servitudes  by  conveyances  has  played  an 
important  role ;  this  method  was  introduced  in  modern  agrarian 
legislation  in  the  interest  of  agriculture.  A  number  of  types  of 
real  servitudes  have  been  thus  abolished,  with  compensation  to 
their  holders. 

§  50.  Particular  Servitudes.  —  A  number  of  rights  of  usufruct 
that  played  an  im])ortant  part  from  the  earliest  times  in  the 

353 


§  50]  THE    LAW   OF   THINGS  [BoOK   II 

economic  life  of  tlie  Germanic  people  were  subjected  at  an  early 
day  to  careful  legal  regulation,  especially  in  the  dooms.  Many 
of  these  were  elaborately  treated  later  in  the  servitude  theory 
of  the  common  law,  and  in  many  cases  were  still  further  de- 
veloped by  modern  statutes. 

(1)  Pasture  Servitudes  ("Weidegerechtigkeiten"). —  (1)  Rights 
of  pasture  ("  Weide-"',  "  Ilutrechte  ",  "  Iliitungsgerechtigkeiten  ") 
usually  rested,  in  early  times,  either  upon  tlie  share-rights  of  the 
markmen  in  the  common  meadows  or  upon  the  seigniorial  rights 
of  manorial  and  other  land-lords  ("  Grund-"  and  "  Gutsherren  ") 
in  the  land  of  the  communes  and  of  villeins  dependent  upon  them. 
Other  rights  of  pasture  were  only  exceptionally  recognized.  Only 
in  later  times  did  it  become  more  frequent  to  create  independent 
rights  of  pasturage  ("  Hutgerechtigkeiten  ") ;  the  special  regula- 
tion of  such  rights  was  usually  accomplished  by  means  of  so-called 
"  Wciderezesse "  (meadow-regulations).  The  influence  of  the 
Roman  law  continued  to  be  slight.  The  rules  of  the  native  law 
retained  authority,  and  it  was  possible  to  unite  them  with  the 
Roman  concept  of  servitudes  only  in  an  artificial  manner  (mpra, 
p.  351). 

The  legal  sources  that  deal  with  pasture  rights  contain  detailed 
provisions  concerning  the  kind  and  number  of  cattle  that  may  be 
pastured.  The  number  is  ordinarily  measured,  after  the  manner 
of  primitive  laws,  according  to  the  number  of  "  head  "  that  could 
be  wintered :  "  if  the  cattle  cannot  be  wintered  they  shall  also 
not  be  summered  "  ("  was  nicht  erwintert  wird  an  Vieh,  soil  audi 
nicht  gesommert  werden  ").  They  also  regulate  the  maimer  of 
user,  —  which  must  be  "  sparing  ",  and  with  regard  for  the  land 
charged  ;  the  time  of  pasturage,  —  for  example,  "  the  cows  shall 
be  driven  (*  schiirgen  ')  on  St.  Jiirgen  from  the  meadows " ; 
the  privilege  of  the  owner  of  the  servient  land  to  undertake 
changes  in  its  cultivation  ;  etc. 

(2)  Pasture  communities  ("  Weidegemeinschaften ")  existed 
in  particularly  great  numbers,  as  was  natural  in  view  of  the  his- 
torical development.  The  privileges  of  the  members  of  a  mark 
or  village  commune  or  of  the  later  special  agrarian  associations 
to  drive  their  cattle  upon  the  common  lands  (that  is  the  "  ITii- 
tungsrechte"),  werederived  from  ancient  associational  and  manorial 
relations.  So  long  as  the  ownership  of  such  lands  had  not  passed 
to  a  corporate  association  ("  Tvirperschaft  ")  distinct  from  the 
members,  and  so  long  as  the  rules  of  the  Roman  corporation  had 
not  been  applied  to  such  corporate  associations,  such  a  privilege 

354 


Ch.\p.  \1I]  the  law  of  land  :    real  rights  [§  50 

was  inconsistent  with  the  Roman  rules,  and  led  to  the  rejection, 
as  already  mentioned,  of  the  rule  "nemini  res  sua  servit";  for 
the  common  meadow  was  certainly  no  "res  aliena"  as  against 
the  members.  The  same  was  true  as  regards  rights  of  pasture 
that  landlords  were  accustomed  to  reserve  to  themselves  in  land 
let  to  peasants.  In  such  cases  legal  theory  spoke  of  a  "ius  com- 
pasculationis  simplex." 

The  right  of  co-pasturage  ("Mithut",  "ius  compascendi ") 
often  granted  to  the  owner  of  the  servient  land  was  a  peculiar 
institute  of  the  pure  Germanic  law.  On  the  other  hand,  when 
several  persons  possessed  at  the  same  time  a  right  of  pasturage 
upon  the  same  holding  ("ius  compascui"),  and  when,  as  was 
frequently  the  case,  a  mutual  right  of  pasture  ("Koppelhut", 
"ius  compasculationis  reciprocum")  was  granted  to  both  lord 
and  tenant,  there  were  involved  rights  in  "re  aliena." 

(3)  Very  often  there  was  associated  with  rights  of  pasture  a 
right  of  sheep-run  ("Schafereirecht"),  — that  is  the  right  to  keep 
a  herd  of  sheep  under  one's  own  shepherds ;  and  also  the  right 
to  name  the  shepherds  of  a  common  herd  ("Schafereistabrecht"). 
The  right  of  foldage  ("Pferchrecht"), — that  is  the  right  to  de- 
mand the  folding  of  the  sheep  upon  certain  lands  in  order  to  manure 
them,  was  a  corresponding  right  on  the  part  of  the  owner  of  the 
servient  lands. 

(4)  Rights  of  way  were  also  ordinarily  associated  with  privi- 
leges of  pasture.  This  was  known  as  a  right  of  drift  ("Trift- 
recht"),  —  that  is  the  right  to  drive  cattle  over  the  land  of  another. 
Such  rights  of  way,  like  all  others,  were  generally  regulated,  as 
to  details,  in  a  manner  which  varied  in  many  respects  from  the 
Roman  rules. 

Rights  of  pasture  have  been  restricted  in  modern  times ;  and 
some  statutes  have  forbidden  their  new  creation. 

(II)  Wood-botes  ("  Waldgerechtigkeiten"). — These  also  orig- 
inated in  ancient  associational  and  manorial  relations,  and  their 
establishment  as  independent  rights  by  juristic  acts  was  recog- 
nized only  at  a  later  period.     They  included  : 

(1)  Rights  to  make  use  of  the  wood  :  either  as  rights  of  estoirr 
("Holzungsgerechtigkeiten"),  — house-bote,  fire-bote,  or  for  other 
purposes,  —  or  as  rights  to  gather  windfall  ("  Windbruchs-", 
"Holzleserechte"),  and  others. 

(2)  Rights  to  make  use  of  the  leafage  ("Streurechnungs-", 
"  Laubsammlungsrechte  "  :  the  right  to  collect  the  leafage,  rights 
of  litter). 

355 


§  50]  THE    LAW    OF   THINGS  [BoOK   II 

(3)  Rights  to  make  use  of  the  forest  fruits,  especially  the  right 
of  mast  ("  Mastgerechtigkeit  "),  a  right  of  pasturage  in  the  wood- 
lands ;  further,  rights  to  gather  beechnuts  and  acorns,  to  pluck 
bilberries,  etc. 

(4)  Rights  of  user  in  the  forest  soil,  such  as  the  right  of  grazing, 
of  tar-boiling,  and  of  charcoal-burning. 

Recent  legislation  has  not  been  favorable  to  forest  rights.  In 
the  interest  of  forestry  they  have  been  regulated  by  the  State,  and 
to  a  great  extent  abolished.  In  very  recent  years  a  contrary 
tendency  has  become  noticeable,  since  the  importance  of  such 
rights  to  the  poorer  population  has  come  to  be  more  highly  ai)pre- 
ciated.^ 

(Ill)  Of  the  remaining  real  servitudes  that  may  occur,  water 
rights  ("  Wasserrechte  "),  —  rights  of  conduit,  rights  to  take 
water,  and  rights  to  water  animals,  —  have  been  regulated  in 
modern  times  in  close  conformity,  for  the  most  part,  with  the 
rules  of  the  Roman  law.  These  rights,  and  also  building  servitudes, 
although  these  last  are  already  to  be  found  in  the  medieval  cities, 
played  a  lesser  role  than  in  Rome,  because  the  elaborately  devel- 
oped rights  of  vicinage  sufficed  in  most  cases  that  arose. 

Topic  3.     Charges  on  Land  ("  Reallasten"). 

§  51.  Real  Charges,  in  general.'-  (I)  Concept.  — Land  charges 
are  charges  upon  land,  or  recurrent  dues  ("  Leistungen  "),  of  a 
positive  nature,  which  are  rendered  from  the  land  as  portions  of 
its  economic  produce  to  the  person  entitled  to  the  charge.  They 
are  distinguished  from  servitudes,  in  the  sense  of  the  Roman  law, 
by  the  obligation  of  a  positive  act.  They  assure  to  the  person 
entitled  to  them  a  limited  real  right.  Such  rights  in  land  charges 
belong  among  the  most  important  real  rights  in  lands  that  have 
been  developed  in  Germanic  law.  According  to  the  nature  of 
the  object  rendering  them,  and  according  to  the  extent,  the  time 
of  accrual,  and  the  continuance  of  the  charge,  we  speak  of  services, 
dues  in  kind,  and  money  rents;  unilateral  and  mutual  or  bilateral 
charges ;    fixed   and   variable  charges,  —  the  last,   for  example, 

1  Gierkr,  "  Privatrcfht  ",  II.  (>75. 

2  Danckcr,  "  Dio  Fjolire  von  don  Rcallaston"  (1S37) ;  Renniid,  "Boitraf? 
zurTlu'oricdcr  Kcallastcn  "  (184(1) ;  (icrbcr,  "Zur  Theorie  dor  Roallaston  ", 
in  J.  n.  fur  Dofjm.,  II  (IS.58),  .'i.')  ct  seq.,  VI  (1803),  2m,  and  in  his  "(Jo- 
samniolto  Abhandliinfjron",  213  etseq.;  v.  Schwind,"Dw  lioallastonfrafjo  ", 
in  Ihcrim/'s  .1.  B.,  XXXIII  (1894).  1  ct  seq. ;  Pflfk/er,  "i)l)or  dio  roohtlieho 
Natur  der  Reallastea",  in  Arch.  f.  zivil.  I^axis,  LXXXI  (1893),  292-328. 

356 


CllAP.  MI]  THE    LAW    OF   LAXD  :     REAL   RIGHTS  [§  51 

those  which  are  rendered  on  marriage  or  as  death  duties;    per- 
petual and  temporary  charges. 

(II)  Historical  development.  —  Land  charges,  which  were 
unknown  in  the  law  of  antiquity,  were  called  into  existence  by  the 
social,  economic,  and  political  conditions  of  the  Middle  Ages. 

(1)  Relations  of  dependence,  in  part  personal  and  in  part  eco- 
nomic in  nature,  recognized  by  the  private  law  between  the  owners 
of  land  and  their  villeins,  constituted  one  of  their  roots.  Slaves 
and  serfs  who  cultivated  manorial  virgates  given  them  as  holdings, 
and  equally  freemen  who  received  land  for  cultivation  under 
one  or  another  form  of  tenancy,  were  bound  to  render  in  return 
various  services  and  dues,  plow-work  ("  Fronden  "),  dues  in 
kind,  and  money  rents.  In  time  it  came  to  be  immaterial  whether 
these  payments  rested  originally  upon  personal  unfreedom,  or 
represented  payments  by  freemen  for  the  cession  of  usufructuary 
rights.  The  nature  and  the  amount  of  the  payment  were  alone 
important  in  determining  the  degree  of  the  dependence.  And 
since  both  of  these  were  ordinarily  firmly  fixed,  such  payments 
came  to  be  closely  associated  with  the  lands  whose  occupants  were 
obligated  to  render  them.  The  lands,  as  such,  and  no  longer 
the  status  of  the  occupant,  were  determinant  of  the  payments : 
different  payments  were  due  from  a  "  mansus  servilis  "  than  from 
a  "  mansus  censualis  "  or  a  "  mansus  ingenuilis."  The  lands  and 
the  charges  resting  upon  them  were  permanent,  and  eventually 
their  character  reacted  upon  the  legal  status  of  their  successive 
occupants.  - 

(2)  Labor  services  and  other  dues  were  not  due  merely  to  the 
owners  of  the  land,  as  such,  from  their  villeins  and  rent-paying 
peasants.  The  State  also  claimed  certain  services,  —  for  example 
militarj^  service,  suit  of  court,  the  finding  of  horses  for  royal 
officials,  and  the  like;  and  collected  taxes,  such  as  the  military 
tax  laid  upon  those  subjects  who  were  unable  personally  to  fulfill 
their  military  obligations.  The  same  was  no  less  true  of  lords 
of  courts  and  bailiwicks,  who  gradually  developed  from  State 
officials  into  local  sovereigns  witli  independent  powers  of  govern- 
ment and  taxation ;  that  is,  into  Territorial  princes.  Finally, 
the  same  was  also  true  of  the  church,  which  claimed  the  tithes 
of  every  piece  of  land,  no  matter  by  whom  it  was  cultivated. 
Unlike  the  obligations  we  have  just  named  above  under  (1),  the 
obligations  we  are  now  dealing  with  involved  what  would  be  called 
in  modern  terminology  obligations  of  a  public  nature.  But  it  was 
peculiarly  characteristic  of  the  INIiddle  Ages  that  there  was  no 

357 


§  51]  THE    LAW    OF   THINGS  [Book   TT 

boundary  between  rights  of  public  and  of  private  law.  Conse- 
quently, these  dues  owing  to  the  State  or  to  private  holders  of 
sovereign  rights,  were  assimilated  to  private  rights ;  they  too 
came  to  be  regarded  as  charges  upon  the  land  that  rested  upon 
its  temporary  occupant.  Thus,  they  might  easily  become  con- 
fused with  obligations  of  the  first  class ;  especially  because  they 
frequently  had  the  same  substantive  content,  and  because  the 
great  landowners  frequently  developed  into  Territorial  princes. 

The  reason  why  these  obligations  were  so  closely  connected 
with  the  soil  and  were  thus  projected  upon  it,  lay  in  the  prevailing 
system  of  agriculture.  There  was  as  yet  no  personal  credit  worthy 
of  mention.  Since  property  still  consisted,  for  the  most  part, 
of  land,  direct  liability  attached  to  the  land.  It  was  the  land, 
rather  than  the  person,  that  was  regarded  as  charged,  as  obligated, 
as  liable. 

(3)  The  wide  prevalence  of  landed  charges  explains  why  this 
legal  institute  was  utilized,  even  during  the  recedence  of  an  agri- 
cultural economy,  in  the  creation  of  real  charges  of  a  new  kind 
which  appeared  in  the  cities ;  in  other  words,  within  the  special 
fields  of  the  incipient  money  economy.  This  was  the  institute 
of  the  "Rentenkanf"  ("  purchase-rent  "),  a  capitalistic  rent  or 
annuity  by  means  of  which  capitalists  assured  themselves  of 
permanent  return  in  the  form  of  rents  rendered  periodically  as 
interest  for  a  capital  sum  invested.  In  these  transactions  the 
association  with  relations  of  manorial  or  economic  dependence, 
which  was  peculiar  to  the  older  real  charges,  was  already  notably 
less  prominent.  The  same  was  true  of  many  other  independ- 
ent charges  for  which  the  form  of  land  charges  continued  to 
be  retained,  —  for  example,  in  parents'  portions  ("  Altenteils- 
rechten,"  p.  329  supra),  widows'  annuities,  etc. 

(4)  From  the  1500  s  onward  the  development  of  land  charges, 
which  had  until  then  been  unchecked,  ceased.  Manorial  rights 
were  deprived,  in  time,  of  their  private  legal  character  under  the 
law  of  things,  assumed  a  purely  public  character,  and  were  thence- 
forth subjected  exclusively  to  the  i)ublic  law  (State  and  comnmne 
taxes,  charges  for  roads,  charges  for  dikes,  ecclesiastical  dues,  etc.). 
In  the  seigniories,  which  continued  to  si)read,  esi)ecially  in  eastern 
Germany,  the  services  of  rural  wage  earners  were  more  and  more 
utilized  along  with  the  ])low-services  required  of  villeins  in  the 
cultivation  of  the  seigniorial  estates.  Still  other  means  were  cre- 
ated b,\-  the  necessities  of  credit.  At  the  same  time  most  of  the 
older  land  charges  were,  at  first,  continued.     It  was  the  agrarian 

358 


Chap,  \1I]  the   LAW   OF   LAND  :     REAL   EIGHTS  [§  51 

legislation  of  the  modern  period,  which  had  as  its  end  the  eman- 
cipation of  rural  holdings,  that  first  abolished  such  charges  to  any 
considerable  extent.  As  a  matter  of  fact,  they  were  generally  abol- 
ished only  in  the  regions  of  the  French  law ;  but  in  most  of 
the  other  parts  of  Germany  many  special  charges  were  totally 
abolished,  —  notably  plow-services,  —  and  many  others  were  de- 
clared redeemable.  In  general,  also,  the  creation  of  new  per- 
petual charges  was  forbidden.  Nevertheless  the  institute,  as 
such,  has  not  disappeared  except  in  the  regions  subject  to  the 
Code  Civil.  Indeed,  in  very  recent  years,  it  has  acquired  renewed 
importance  in  the  creation  of  so-called  "  Rentengiiter  "  —  estates 
subject  to  land  charges  that  are  very  generally  perpetual  —  and 
has  also  been  adopted  in  the  Civil  Code.  The  Introductory  Act 
thereof  also  left  unchanged  existing  land  charges  (§  184),  as  well 
as  provisions  of  State  law  regarding  the  redeemability,  conversion, 
or  limitations  both  of  servitudes  and  of  land  charges  (§  113). 
In  Switzerland  land  charges,  aside  from  annuities  ("  Renten  "),. 
remained  in  three  cantons  only ;  but  the  Civil  Code  has  adopted 
the  land  charge  ("  Grundlast ")  despite  violent  opposition  in 
the  French  cantons,  and  has  regulated  it  in  common  with  servi- 
tudes. Unlike  the  German  Civil  Code  (§  1105),  however,  it  has 
in  this  connection  (§  782)  recognized  as  land  charges,  not  only 
periodical  but  also  single  renders  ("  Leistungen  "). 

(Ill)  The  Nature  and  Content  of  Land  Charges.  —  (1)  The  Older 
Theories.  —  Land  charges  presented  the  greatest  difficulties  to 
legal  science  from  the  moment  it  began  to  busy  itself  with  their 
theory.  It  was  precisely  here  that  its  efforts  were  least  successful, 
because  the  forms  of  the  Germanic  law  could  not  be  forced  exactly 
into  the  Roman  categories.  The  countless  attempts  made  to  ex- 
plain land  charges  have  represented  three  tendencies,  the  endeavor 
being  made  to  classify  them  either  as  contractual  claims,  or  as 
real  rights,  or  as  mixed  rights  partly  obligational  in  character 
and  partly  rights  under  the  law  of  things. 

(A)  When  conceived  of  as  a  contract  claim,  —  a  view  which 
found  expression  as  early  as  the  1000  s,  —  land  charges  were 
classified  by  the  older  theorists  (Zarpzow,  Schilter,  Mevius,  and 
others)  as  ordinary  obligations  associated  with  a  pledge-like 
liability  of  the  thing ;  in  other  words  they  were  regarded  as  con- 
tractual claims  secured  by  a  hypothec.  In  order  to  make  this 
relation  more  intelligible,  resort  was  had  by  modern  theorists 
{e.g.  by  Kohler)  to  the  Roman  conception  of  an  "  actio  in 
rem  scripta."     Even  this  view,  however,  was  unable  to  explain 

359 


§51]  THE   LAW   OF   THINGS  [Book   II 

"  how  an  obligation  ostensibly  personal  changes  its  holder  with 
a  change  in  the  possession  of  the  land  "  ;  ^  also,  it  overlooked  the 
fact  that  in  the  case  of  a  land  charge  there  is  but  a  single  legal 
relation,  and  not,  as  in  the  case  of  a  hypothec,  an  obligational 
claim  and  also  a  right  of  pledge.  The  theory  which  regarded  land 
charges  as  obligations  to  an  indefinite  obligee,  likewise  proceeded 
from  the  assumption  of  a  personal  obligation ;  such  obligations, 
incumbent  upon  the  successive  possessors  of  a  definite  piece  of 
land,  were  designated  by  Gerber  "  Zustands-"obligations  (deter- 
mined by  the  coihditionov  situation  of  the  land).  This  construc- 
tion, however,  although  it  had  many  supporters  {e.g.  Stobbe), 
leaves  completely  out  of  account  the  Roman  concept  of  an  obli- 
gation which  it  purports  to  accept  as  its  basis;  for  the  Roman 
obligation  is  inconceivable  in  the  absence  of  a  personal  obligor. 
The  concept  of  an  obligation,  moreover,  proved  to  be  useless 
for  the  further  reason  that  there  is  in  a  land  charge  nothing  like 
the  cancellation  or  release  which  is  essential  to  an  obligation : 
an  obligation  is  satisfied  by  performance,  —  by  payment  of  the 
debt ;  but  this  is  by  no  means  true  of  a  land  charge.  And  though, 
finally,  to  avoid  these  difficulties,  the  charge  was  even  explained 
as  a  series,  merely  physically  associated,  of  distinct  individual 
payments  arising  under  various  circumstances  (Mitteis,  also  von 
Schwind),  this  was,  in  fact,  "  the  very  acme  of  violence  in  dissimu- 
lating the  phenomenon  that  actually  exists."  - 

(B)  Those  theories  which  explained  the  land  charge  as  an  in- 
stitute OF  THE  LAW  OF  THINGS  rested  on  a  sounder  basis.  These 
theories  regarded  the  personal  obligation  as  at  most  "  an  accessory 
element  ",  laying  emphasis  upon  thfe  real  right  in  the  land.  It  is 
true  that  the  widespread  view,  especially  common  in  older  legal 
theory,  that  land  charges  are  servitudes  (servitudes,  of  course, 
of  the  German  law,  consisting  "  in  faciendo  ")  merely  avoided 
the  difficulty  in  the  problem,  explaining  one  unknown  quantity 
by  another  equally  unknown.  AYhen  a  peculiar  real  right  to 
recurrent  services  was  later  substituted  for  the  "  servitus  in  fa- 
ciendo ",  or  the  real  character  ("  Dinglichkeit  ",  "  thinglikeness  ") 
of  such  right  was  derived  from  an  original  right  of  control  over 
the  land,  no  very  great  advance  was  made  toward  a  solution  of 
the  problem.  Xor  can  more  be  said  of  the  theory,  —  whiclf  would 
have  satisfied  the  naive  view  of  the  Middle  Ages  but  is  inadequate 
to  the  needs  of  modern  theory,  —  that  the  land  itself,  conceived 
of  as  a  person,  is  the  obligor,  and  its  temporary  occupant  merely 
»  Gierke,  "Privatrecht ",  II,  70.5.  2  Ibid.,  707. 

360 


CuAP.  MI]  THE    LAW    OF   LAND  :     REAL    RIGHTS  [§  51 

his  representative  (Duncker).  It  was  far  more  nearly  correct 
to  ascribe  to  the  person  entitled  to  the  charge  an  additional  real 
right  in  the  individual  payments;  though  the  manner  in  which 
this  view  was  developed  by  Renaud,  originally  made  it  appear 
applicable  to  those  cases  only  in  which  natural  or  money  rents 
were  rendered,  and  not  where  services  were  rendered. 

(C)  The  ECLECTIC  THEORIES  sought  to  curc  the  imperfection  of 
the  two  preceding  theories.  Some  authors,  in  their  desire  to  save 
the  land  charge,  rejected  in  toto  the  distinction  between  real  and 
personal  rights,  or  devised  transition  concepts  of  subjective-real 
rights  and  real-obligational  rights  (Eichhorn,  Reyscher,  Pfliiger, 
and  others)  :  constructions  which  necessarily  remained  unclear 
and  contradictory  because  based  upon  concepts  of  the  Roman 
law,  notwithstanding  that  the  correctness  of  their  basic  principle 
was  revealed  by  the  historical  study  of  Germanic  law  {infra, 
§§  53,  68).  Finally,  many  have  attributed  a  mixed  character 
to  land  charges  because  of  the  fact  that  such  a  charge  is,  as  a 
whole,  a  real  charge  upon  the  land,  whereas  the  obligation  to 
make  any  particular  payment  is  a  personal  debt  of  the  occupant 
(Wachter,  Walter,  Roth,  and  others). 

This  last  has  doubtless  been  the  theory  most  widely  accepted. 
It  also  was  unsatisfactory,  for  it  endeavored  vainly  to  distinguish 
the  two  classes  of  rights ;  a  right  to  a  land  charge  is,  broadly 
considered,  nothing  else  than  a  right  to  the  individual  payments. 
Nor  was  there  any  advance  toward  a  complete  explanation  when 
others  emphasized,  as  the  most  important  element  in  such  charges, 
either  the  obligation  or  the  real  right ;  adding  to  the  obligation, 
in  the  first  case,  a  real  right  in  the  land,  and  to  the  real  right,  in 
the  second  case,  an  obligational  relation  to  the  occupant  (Cosack, 
H.  0.  Lehmann,  Dernburg,  Landsberg,  and  others). 

(2)  The  Modem  Theory  of  the  German  Law.  —  A  solution  of 
the  problem  was  first  offered  by  the  theory  which  Gierke  ^  has 
recently  laid  at  the  basis  of  his  researches,  following  the  lines 
earlier  indicated  by  Renaud,  Gengler,  Arnold,  and  H.  0.  Leh- 
mann. 

It  must  be  noted,  in  the  first  place,  that  in  the  Middle  Ages, 
when  the  institute  of  the  land  charge  was  full  of  vitality,  the  rights 
of  one  entitled  to  such  a  charge  were  conceived  of  as  real  rights. 
They  gave  him  a  right  of  control  over  the  thing  which  originally 
appeared  as  the  result  of  ownership  of  the  land  or  of  some  authority 
under  the  public  law.  Like  all  other  real  rights,  land  charges 
^  Gierke,  "Privatrecht  ",  II,  710  et  seq. 
361 


§  51]  THE    LAW    OF   THINGS  [BoOK   II 

were  clothed  in  the  cover  of  seisin,  either  of  the  estate  itself  or  of 
the  right  to  the  render  of  the  rent ;  anil,  like  every  other  right  em- 
bodied in  seisin,  the  right  to  a  land  charge  was  created  by  a  real 
juristic  act,  registered  in  the  land-book,  and  protected  by  actions 
based  iii)on  the  seisin.  Now,  land  charges  existed  and  still  exist, 
as  already  mentioned,  in  the  form  of  recurrent  dues,  distinct 
in  nature,  which  under  the  medieval  law  were  rendered  by  the 
possessor  cultivating  the  land  in  his  own  right,  and  according  to 
the  later  law  and  the  law  of  to-day  by  the  owner  (or  in  some  cases 
the  "  subordinate  "  owner),  out  of  the  land  and  to  the  person 
thereto  entitled.  That  such  person  possessed  a  real  right  in 
the  land  itself,  according  to  the  original  theory  of  the  Germanic 
law,  in  all  those  cases  where  a  part  of  the  fruits  of  the  land  were 
rendered  to  him  either  in  kind  or  in  money,  —  that  he  enjoyed, 
in  other  words,  a  seisin  in  the  land,  follows  directly  from  the 
general  principles  of  the  Germanic  law  of  land  already  discussed 
(supra,  p.  18G  etc.).  The  same  is  true  today,  however,  of  land 
charges  in  the  nature  of  services,  however  great  may  be  the  diffi- 
culty of  reconciling  these  with  the  older  theories  based  upon  the 
law  of  things.  We  must  conceive  of  a  piece  of  land,  with  all  its 
economic  organization,  as  a  whole ;  as  a  solidary  landed  estate 
{"  Grundvermogen ")  whose  products  and  whose  usufructuary 
value  include  not  alone  the  fruits  it  yields  but  also  the  labor-force 
available  upon  it,  through  whose  employment  the  person  entitled 
to  the  charge  receives  the  profits  due  him  in  the  form  of  payments 
either  in  money  or  in  kind  ("  Abgaben  ")  or  in  services.  The 
portion  of  produce  or  of  labor  services  deliverable  to  the  holder 
of  the  right  curtails  the  estate  of  the  possessor.  We  thus  attain 
a  conception  of  the  land  charge  which  is  uniformly  applicable  to 
all  its  forms ;  namely,  one  of  a  real  charge  resting  upon  the  land 
("  Grundstiick  ")  or  upon  the  landed  estate  ("  Grundvermogen  ") 
of  the  possessor,  and  a  corresponding  real  right  in  the  person 
entitled  to  the  charge.  "  Corresponding  to  the  right  of  the  person 
entitled  to  the  charge  to  receive,  is  a  duty  to  perform,  which,  as 
a  passive  element  of  the  estate  in  the  land,  rests  upon  the  hitter's 
temporary  occupant  or  owner,  and  may  be  designated  as  a  '  real 
obligation  '  ('  dingliche  Schuld,'  real  debt)."  ^ 

The  conception  of  a  real  obligation,  which  at  first  blush  appears 

to  contradict  the  principle  (always  recognized,  of  course,  in  the 

Germanic  law)  that  only  a  human  being  can  bo  an  ()l)lig<)r  (infra, 

§  68),  nevertheless  results  necessarily  from  the  Germanic  concept 

»  Gierke,  "Privatreeht  ",  II,  711. 

3G2 


Chap.   VII]  THE    LAW   OF   LAXD  :     REAL    RIGHTS  [§   51 

of  liability  ("  Haftungsbegriff ").  Ever}-  liability  presupposes 
{infra,  §  68)  the  existence  of  an  obligation  ("  Schuld  ")  :  that  is, 
the  legal  duty  of  some  human  being  to  render  some  performance. 
Wherever  something  is  liable  there  must  exist  some  sort  of  an 
obligation.  In  the  case  of  an  "  Obligation  "  there  rests  upon  the 
obligor,  personally,  a  legal  duty ;  the  right  of  the  obligee  to  receive, 
corresponding  to  his  duty  to  perform,  is  enforceable  against  him 
personally  whether  such  personal  responsibility  originate  con- 
tractually or  in  some  non-contractual  circumstance.  In  the  case  of 
a  "  dingliche  Schuld  ",  on  the  contrary,  it  is  not  a  person,  as  such, 
who  is  bound  to  perform  and  for  whose  performance  somebody 
or  something  is  liable,  but  rather  a  person  who  is  determined  by 
his  ownership  of  particular  land  subject  to  a  charge.  The  tem- 
porary owner  of  this  land  is  the  obligor ;  it  is  solel}^  his  real  rela- 
tion to  this  land,  expressed  in  his  ownership,  which  makes  him 
the  obligor.  Unless,  therefore,  a  personal  obligation  exists,  in 
addition  to  the  real  obligation,  the  obligor's  duty  cannot  be 
enforced  by  a  personal  action  against  him,  but  only  upon  the 
ground  of  a  real  right  in  the  land  existing  in  favor  of  the  obligee. 

The  "  dingliche  Schuld  ",  therefore,  has  a  necessary  complement 
—  necessary  to  the  person  who  is  obligee  —  in  a  "  real  liability  " 
of  the  land  (infra,  §§  54,  69).  "  A  real  charge  is  a  right  of  usu- 
fruct secured  by  the  liability  of  a  thing."  ^  In  other  words,  the 
land  that  is  charged  is  liable  to  the  person  who  holds  the  charge 
for  the  individual  performances  as  they  become  due.  This  idea 
lay  at  the  basis  of  the  medieval  phraseology ;  as  e.g.  that  the  vir- 
gate  "  gelded  "  ("  zinsen  ")  the  land,  was  "  geldable  "  ("  zins- 
fallig  "),  etc.  The  new  Civil  Code,  —  which,  it  may  be  remarked, 
recognizes  land  charges  only  in  the  form  of  dues  in  money  or 
kind  ("  Abgaben"), — and  the  Swiss  Civil  Code  as  well,  are  there- 
fore entirely  in  accord  with  the  old  law  in  classifying  the  institute 
among  limited  real  rights  in  land. 

Under  the  medieval  law,  the  person  entitled  to  the  charge 
could  satisfy  himself  for  any  unsatisfied  payment,  out  of  the  land 
and  the  chattels  found  thereon ;  and,  indeed,  in  the  case  of  cer- 
tain ground  rents  ("  Grundzinsen  "),  even  by  distraint  by  way 
of  self-help.  In  the  more  modern  law  the  liability  (warranty, 
"  Verhaftung  ")  existing  in  his  favor,  which  came  to  be  enforce- 
able solely  by  way  of  judicial  execution,  extended  to  the  same 
things  that  were  liable  for  the  claims  of  mortgagees.  With  this 
step  the  land  charge  acquired  a  character  akin  to  mortgage  rights 
1  Gierke,  "  Privatrecht  ",  II,  712. 
363 


§  51]  THE    LAW    OF   THINGS  [BoOK   II 

("  Griiiidpfandrechten  ").  Xevcrtholess  it  remained  primarily 
a  usufructuary  right,  which  directly  attached  to  the  utihty  value 
of  the  land ;  whereas  mortgage  rights  are  primarily  merely  rights 
warranted  by  a  thing,  and  only  as  a  last  resort  become  the  basis 
of  a  claim  to  the  land  so  liable. 

Inasmuch  as  the  land  charged  is  liable  to  the  holder  of  the  charge 
for  payment  of  the  debt,  the  real  debt  rests  upon  the  possessor  or 
owner,  at  any  moment,  of  the  land.  From  this  the  older  law  drew 
the  correct  conclusion  that  the  land  was  also  liable,  in  the  hand 
of  each  legal  successor,  for  unsatisfied  payments  that  had  become 
due  in  the  time  of  his  predecessors.  To  be  sure,  this  was  not  true 
of  plow-services,  for  one  could  owe  them  only  while  one  possessed 
the  land,  and  only  at  the  moments  when  they  were  demandable; 
no  later  payment  was  possible.  Xor  was  it  possible  in  the  case 
of  tithes,  which  the  person  entitled  thereto  was  bound  to  take  from 
the  current  harvest,  and  which,  in  case  he  neglected  to  do  so, 
were  not  delivered  in  the  future.  But  it  was  true  of  all  rents  in 
kind  and  in  money ;  and  although  the  liability  of  the  land  for 
such  overdue  rents  was  later,  for  practical  reasons,  customarily 
limited  to  a  definite  number  of  years,  modern  statutes  usually 
clung  to  the  other  view,  which  alone  is  consistent  with  the  nature 
of  the  land  charge.  ]More  recently,  however,  it  has  been  errone- 
ously, and  for  the  first  time,  abandoned  in  legal  theory.  The  new 
Civil  Code  has  followed  the  older  law.  Not,  however,  the  Swiss 
Civil  Code ;  for  it  provides  that  each  render  shall  become  a  per- 
sonal debt  upon  the  termination  of  three  years  after  it  becomes 
due,  the  land  not  being  liable  for  it  thereafter  (§  791,  2). 

The  real  debt  and  the  real  liability,  and  the  corresponding  real 
right  in  the  holder  of  the  charge,  are  the  essence  of  a  land  charge. 
And  the  purpose  of  the  institute  was  thereby  perfectly  satisfied 
in  the  older  law.  For  the  liability  of  the  land  gave  to  the  holder 
of  the  charge  a  sufficient  security ;  and  from  the  viewpoint  of  an 
agricultural  economy  the  only  sufficient  security  possible.  There 
was  no  need  to  make  its  temporary  occupant  personally  liable  in 
addition ;  that  is,  to  subject  his  other  property,  as  well  as  the 
land,  to  attack  by  the  holder  of  the  charge.  Consequently,  the 
element  of  i)ersonal  liability  by  the  possessor  was  totally  lacking 
in  the  land  charge  of  the  older  law.  This  is  seen  most  clearly 
in  the  fact  that  the  occupant  of  the  land  could  free  himself  from 
liability  for  overdue  payments  by  renouncing  the  estate:  the 
charge  remained  upon  the  land,  though  now  ownerless  (contra: 
Gobbers,  and  Wopfner).     At  the  same  time,  in  the  case  of  par- 

364 


Chap.  VII]  THE    LAW    OF   LAND  :     REAL   RIGHTS  [§  51 

ticular  charges  and  under  certain  circumstances,  a  personal  debt 
of  the  occupant  was  early  recognized.  This  was  the  case,  no- 
tably, when  the  real  liability  of  the  land  for  accrued  payments  was 
limited  to  a  relatively  short  period ;  for  the  right  to  the  charge 
would  otherwise  have  become  completely  useless  at  the  expira- 
tion of  such  period.  The  more  modern  statutes  have  adhered 
in  principle  to  the  old  viewpoint,  recognizing  only  exceptionally 
a  personal  obligation.  The  new  Civil  Code  has  recognized  for 
the  first  time  a  personal  liability  of  the  landowner,  side  by  side 
with  the  real  charge,  for  payments  accruing  during  the  continu- 
ance of  his  ownership.  (Not,  to  be  sure,  in  the  case  of  the  annuity- 
charge  —  "  Rentenschuld  "  ;  —  which,  however,  it  does  not  in- 
clude among  land  charges,  —  infra,  §52).  That  such  personal 
liability  is  not,  however,  an  essential  element  under  the  present 
law  is  evident  from  the  Code's  recognition  (§  1108)  of  the  possi- 
bility of  its  exclusion.  Only  in  cases  where  a  personal  liability 
exists,  —  which  may  be,  but  need  not  be,  the  case,  —  does  the 
content  of  the  land  charge  include  an  obligational  in  addition 
to  the  real  element  which,  under  all  circumstances,  is  essential 
to  it.  The  land  charge  is  distinguished  by  this  fact  from  the  hy- 
pothec, in  which  the  relation  of  personal  liability  is  theoretically 
the  primary  right,  and  the  real  right  only  accessory  thereto.  The 
Swiss  Civil  Code,  unlike  the  German,  bases  the  land  charge  upon 
the  pure  principle  of  a  real  ("  Sach-",  "  thingal  ")  liability  (§  782, 
791,  1) ;  but,  as  already  mentioned,  it  permits  the  transformation 
of  the  real  into  a  personal  liability  after  the  expiration  of  three 
years  (§  791,  2). 

(IV)  Creation. —  (1)  The  older  charges  upon  land  were  very 
commonly  created  hy  rule  of  law,  either  of  custom  or  of  enactment. 
In  the  modern  law  the  latter  ordinarily  occurs  only  in  the  case  of 
dues  ("  Leistungen  ")  under  the  public  law,  which,  however,  can 
no  longer  be  regarded  as  land  charges  in  the  true  sense. 

(2)  The  older  law  required  for  their  creation  hy  juristic  act  a 
release  ("  Auflassung  ")  and  also,  often,  entry  in  the  land-book. 
While  the  common  law,  under  the  influence  of  Roman  legal  views, 
permitted  their  creation  by  simple  contract  or  testamentary  dis- 
position, some  of  the  regional  systems  have  clung  to  the  require- 
ment of  registration  or  judicial  confirmation.  Modern  legisla- 
tion has  likewise  required  registration  either  for  their  creation 
(Austria,  Saxony)  or  at  least  in  order  to  make  them  effective 
against  third  persons  (Prussia).  The  new  Civil  Code  permits 
the  creation  of  land  charges,  as  of  all  other  rights  in  land,  only 

365 


§51]  THE    LAW    OF   THINGS  [BoOK   II 

by  a   real  agreement   ("  Einigung  ")  and  registry'  in  the  land- 
book  (§  873). 

(3)  Acquisitive  prescription  of  land  charges  was  unknown  to 
the  okler  Germanic  law,  —  save  that  it  recognized,  here  also,  a 
plea  based  upon  immemorial  possession.  Aside  from  this,  it 
recognized  only  judicial  seisin.  In  the  common  law  the  jiroblem 
of  acquisitive  prescription  remained  a  disputed  one,  but  in  the  end 
an  extraordinary  prescription  in  thirty  or  forty  years  was  generally 
recognized.  The  regional  legal  systems,  for  the  most  part,  went 
further,  introducing  also  an  ordinary  prescription  (Prussia, 
Austria).  On  the  other  hand,  acquisitive  prescription  has  again 
either  been  entirely  abolished  or  at  least  made  more  difficult 
under  the  modern  system  of  land  registration.  It  is  not  recognized 
by  the  Civil  Code. 

(V)  Conversion  ("  Umwandlung  ")  is  a  change  of  the  land 
charge  of  such  a  nature  that  another  form  of  render  ("  Leistung  ") 
is  substituted  for  one  formerly  existing.  It  may  either  be  "  Fixa- 
tion ",  — that  is,  the  conversion  of  a  charge  quantitatively  indefi- 
nite into  one  quantitatively  definite  (as  e.g.  the  substitution  of 
a  money  rent  in  place  of  tithes) ;  or  redemption  {"  Adiiration  "), 
that  is,  the  conversion  of  an  existing  charge  in  services  or  dues 
in  kind  into  a  money  rent.  Conversions  of  this  class  may  be 
eflPected  by  juristic  act  of  the  parties ;  but  they  have  been  most 
frequently  accomplished  through  legislation. 

(VI)  Extinction.  —  As  already  stated,  a  land  charge  is  not 
destroyed  by  the  abandonment,  by  the  holder  of  the  land,  of  the 
land  liable  therefor ;  and  it  is  as  little  destroyed  by  the  extinction 
of  the  family  who  possess  the  land.  Again,  acquisition  of  the 
land  by  the  owner  of  the  charge  merely  excludes  the  possibility 
of  its  formal  payment ;  it  does  not  destroy  the  charge  as  such. 
The  Civil  Code  (§  889)  so  holds,  in  accord  with  the  older  law ; 
whereas  in  modern  law  —  at  least  in  the  case  of  unregistered 
charges  —  merger  ("  Konfusion  ")  had  been  regarded  as  suffi- 
cient to  terminate  the  charge.  On  the  other  hand,  land  charges 
are  ex-tinguished  : 

(1)  By  rule  of  law,  by  the  destruction  of  the  land  or  by  the  dis- 
appearance of  the  person  entitled  to  it.  A  land  charge  of  a  quali- 
fied nature  or  created  for  a  definite  period  is  e\i:inguished  by  the 
incidence  of  a  condition  subsequent  or  the  expiration  of  the  term. 

(2)  By  juristic  act,  —  a  unilateral  renunciation  by  the  person 
entitled  to  the  charge  being  in  general  sufficient,  imder  the 
Civil  Code,  when    followed    by    cancellation    in    the    land-book 

366 


Chap.   MI]  THE    LAW    OF   LAND  :     REAL    RIGHTS  [§  51 

(§  875).      Charges  upon  land  can  be  specifically  abolished  by- 
juristic  act. 

(3)  The  claim  to  any  individual  payment  may  be  lost  under 
all  circumstances  tJirough  extinctive  yrescription.  But  the  right 
to  the  charge  as  a  whole  cannot  so  be  lost  where  there  exists  a 
system  of  land  registry;  save  that  in  case  of  wrongful  cancella- 
tion there  results  a  so-called  negative  prescription  of  the  land- 
book  ("  Buchverjahrung  ",  §  901).  Particularly  important  under 
the  Civil  Code  is  destruction  as  a  result  of  a  procedure  by  citation 
(§  1112).  In  the  case  of  unregistered  land  charges  extinctive 
prescription  was  recognized  by  the  common  law  and  by  most  of 
the  regional  systems. 

(4)  The  mode  of  extinction  which  has  played  by  far  the  most 
important  role  historically  is  that  of  statutory  provision.  We  have 
already  remarked  under  II  that  modern  legislation,  following  the 
example  set  by  France,  has  endeavored  since  the  beginning  of 
the  1800  s,  and  particularly  since  1848,  to  abolish  land  charges, 
so  far  as  possible,  in  the  interest  of  the  peasantry.  A  whole  series 
of  them  were  abolished  outright,  including  all  charges  connected 
with  "  patrimonial  "  rights  of  judicature  and  seigniorial  police ; 
also,  hunting  services  ("  Jagdfronden  "),  and  all  charges  akin 
to  taxes.  As  regards  others,  compensation  from  the  public  treas- 
ury was  provided  for  in  many  statutes.  Most  other  land  charges, 
—  save  those  of  a  temporary  nature,  such  as  elders'  portions,  — 
were  made  redeemable  by  special  statutes  adopted  in  all  the 
German  States  with  the  sole  exception  of  jMecklenburg.  All 
perpetual  land  charges  were  required  to  be  redeemed  upon  condi- 
tions set  by  these  statutes ;  as  respects  other  charges,  the  owner 
of  the  land  and  the  person  entitled  to  the  charge  were  given  the 
privilege  of  demanding  redemption  under  the  statute.  For  these 
latter  the  statutes  prescribe  a  special  redemption  procedure. 
This  amounts  to  a  conversion  of  the  charge,  when  not  already 
payable  in  money,  into  a  money  rent,  the  redemption  sum  being 
a  certain  multiple  of  the  rent.  The  State  lends  its  aid  in  the 
redemption  by  paying  to  the  holder  of  the  rent  the  capital  sum 
involved,  generally  in  the  form  of  interest-bearing  obligations 
of  the  State  ("  Rentenbriefe  "),  and  collects  the  rents  in  turn  from 
the  obligor,  in  addition  to  a  certain  premium  required  for  amor- 
tisation. This  redemption-premium  has  the  effect,  after  it  has 
been  paid  for  a  series  of  years,  of  extinguishing  the  rent,  thereby 
accomplishing  the  ultimate  release  of  the  land  (Prussian  statutes 
of  June  27th,  1890,  and  July  7th,  1891). 

367 


§  52]  THE    LAW   OF   THINGS  [BoOK   II 

§  52.  Particular  Land  Charges.  (I)  Plow-work  and  other 
Manorial  Services  ("  Fronden  ",  "  Dienste  ").  — These  originated, 
as  already  mentioned,  partly  in  old  relations  of  serfdom  and 
partly  in  seigniorial  privileges  under  public  law.  After  the  begin- 
ning of  the  modern  period  they  increased  greatly  in  number  and 
acquired  renewed  economic  importance  in  consequence  of  the 
development  of  seigniories  in  Eastern  Germany.  Only  those 
services,  however,  that  were  based  upon  obligations  under  the 
private  law  retained  to  the  end  the  character  of  land  charges 
in  the  true  sense. 

The  services  owed  might  be  of  the  most  varied  character.  A 
distinction  was  made  between  definite  or  indefinite  services  (the 
latter  first  became  general  in  the  IGOO  s),  ordinary  and  extraordi- 
nary services,  manual  services  (the  person  obligated  was  bound 
to  perform  manual  labor,  but  not  to  furnish  anything  except  the 
necessary  implements)  and  team  services  (furnishing  in  these 
cases  oxen  and  implements).  The  performances  need  not  be 
rendered  in  person,  but  were  required  to  be  rendered  gratui- 
tously. 

The  agrarian  legislation  of  the  ISOO  s  abolished  in  most  States 
all  forms  of  plow-work  and  other  services.  Where  services  can 
still  be  registered  as  land  charges  they  are  either  limited  in  dura- 
tion or  redeemable  under  the  statutes. 

(II)  Ground  rents  ("  Grundzinsen  ",  "  census  ").  — These  ap- 
peared in  countless  forms  and  species  from  the  earliest  period  of 
the  Middle  Ages.  These  were  land  charges  that  involved  the 
payment  of  regularly  recurrent  rents  ("  Leistungen  ")  of  definite 
amount.  Originally  dues  in  kind  exclusively,  they  were  later 
rendered  in  the  form  of  money  rents.  Payments  in  kind  were 
made  in  the  fruits  of  the  soil,  but  also  in  fowl,  wax,  honey,  wine, 
beer,  etc.  With  reference  to  the  part  of  the  tenement  charged, 
men  spoke  of  "garden-fowl"  ("Gartenhiihner"),  "chimney-fowl" 
("  Rauchhuhner  "),  "  hearth-money  "  ("  Ilerdgeld  "),  "  pasture- 
tax  "  ("  Wurtzins  ") ;  and  so  on.  The  time  and  place  of  render 
resulted  in  such  names  as  "  lattice-rent  "  ("  Gatterzins  ",  —  a 
rent  collected  at  the  gate  or  barrier ;  it  disappeared  later  and  was 
replaced  by  the  "  Bringzins  ",  a  rent  required  to  be  "  brought  ")  ; 
"Easter-fowl",  "Shrovetide-fowl",  "Easter  eggs",  "Whit- 
suntide lambs  ",  "  Martinmas-geese  ",  "  nuptial-fowl  ",  and  the 
like.  Rents  overdue  were  in  many  cases  increased  by  penal  inter- 
est, —  to  the  extent  of  du])licati()n  in  the  case  of  the  so-called 
"  sliding-interest  "    rents    ("  Rutscherzinsen  ").     Continued    de- 

3G8 


Chap.  \TI]  THE   LAW   OF   LAND  :     REAL   RIGHTS  [§  52 

fault  resulted  in  the  escheat  of  manorial  holdings  to  the  lord  of 
the  rent. 

The  old  ground  rents  of  this  class  have  disappeared  in  modern 
times.  The  principles  of  the  medieval  law  are  no  longer  ap- 
plicable to  the  redemption  rents  substituted  in  their  place  (supra, 
p.  3G7). 

(Ill)  The  tithe  ("decima  ").  — This  was  a  payment  of  a  definite 
quota,  usually  the  tenth  part,  but  often  also  the  eleventh,  twentieth, 
or  sixtieth  part,  of  the  yearly  harvest  of  the  land.  It  appeared 
chiefly  in  two  connections :  as  a  lay  or  secular  and  as  an  eccle- 
siastical tithe;  the  former  being  collected  from  the  earliest  INIiddle 
Ages  by  secular  land  magnates  and  by  the  crown ;  the  latter 
being  claimed  from  an  early  period  by  the  church  from  all  believers, 
upon  the  basis  of  certain  Biblical  passages.  Although  supported 
in  their  efforts  by  the  Prankish  State,  the  church  was  unable,  in 
the  long  run,  to  establish  generally  the  obligation  of  the  church's 
tithe  and  a  prohibition  of  the  secular  tithe.  The  ecclesiastical 
tithes  therefore  became,  also,  a  tribute  under  the  private  law; 
which,  while  it  served  the  ends  of  the  church,  accrued  to  it  only 
by  virtue  of  a  special  legal  title.  Moreover,  the  person  of  the 
temporary  holder  of  the  rent  was  not  of  decisive  importance  in 
the  conception  of  the  ecclesiastical  tithe,  but  only  the  mode  of  its 
original  creation.  According  to  the  content  of  the  right,  there 
were  distinguished : 

(1)  "  Decima  universalis  "  and  "  particularis  ",  according  as 
the  tithe  affected  an  entire  field  and  all  the  arable  plots  and  vine- 
yards included  within  it,  or  merely  individual  pieces  of  land  therein. 
In  the  first  case  a  tithe  was  collected  also  from  newly  cleared  land, 
as  an  "  assart-"  ("  Neubruchs-",  "  Rott-  ")  tithe. 

(2)  "  Decima  generalis  "  and  "  specialis  ",  according  as  the 
tithe  was  paid  in  all  or  only  in  special  products  of  the  soil. 

(3)  "  Decima  praedialis  "  and  "  decima  carnium  ",  predial 
tithes  and  blood  (or  "  animal  ",  "  flesh  ",  or  "  living  ")  tithes,  — 
the  former  consisting  in  fruits  of  the  field,  the  latter  in  animals 
or  animal  products  (horses,  cattle,  swine,  sheep,  eggs,  milk,  malt, 
or  honey). 

(4)  Greater  tithes  and  lesser  tithes ;  the  former  collected  upon 
corn  and  wine,  the  latter  from  the  produce  of  fruit  trees  and  gar- 
dens (fruit,  vegetables,  and  the  like). 

As  a  rule  the  collection  was  so  made  that  the  lord  of  the  tithe 
was  notified  of  the  harvest  day ;  and  then  he  himself  or  his  tithe 
collectors    undertook  the    enumeration  of    the    heaps    of    corn, 

3G9 


§  52]  THE    LAW    OF   THINGS  [BooK   II 

sheaves,  sacks,  or  tubs,  in  the  order  in  which  they  were  garnered 
in  the  field. 

As  a  result  of  the  modern  legislation  of  the  States,  including 
that  of  recent  years,  —  e.g.  the  Prussian  statute  of  ]\larch  2,  ISoO, 
—  all  tithes  have  been  declared  redeemable,  and  some  of  them 
(the  lesser  tithes,  assart  tithes,  and  the  blood  tithes)  generally 
abolished  ;  the  new  creation  of  tithes  being  i)rohibited. 

(R  )  Capital  rent  ("  Rente  ")  and  purchase-rent  ("  Renten- 
kauf").^ — Both  in  Germany  and  also  in  France,  Italy,  and  else- 
A\hcre,  there  were  widely  pre\alent  in  the  later  jMiddle  Ages  a 
special  class  of  ground  rents  known  as  "  redditus  annul ", 
"Giilten",  "  Gelder  ".  These  were  capital  rents  ("Renten"). 
They  owed  their  origin  to  the  increasing  prosperity  of  urban  life; 
whence  they  were  also  known  as  rents  "  of  town  law  "  ("  Weich- 
bildsrenten  ";  in  Liibeck  "  Wiboldsrenten  "). 

The  transition  from  the  older  ground  rent  to  the  capital  rent 
was  made  by  the  so-called  "  soul-rent  "  ("  Seelzins  ").  This  rent, 
paid  as  a  "  Seclgerate  "  to  replenish  the  sacred  vessels  and  vest- 
ments ("  Geriite  ")  used  in  the  church's  offices,  —  that  is,  for  masses 
said  on  the  deathday  of  the  donor,  —  was  laid  upon  a  house  or 
land.  The  donor  created  it  by  imposing  upon  the  temporary  pos- 
sessor of  the  land  (usually  himself,  but  in  case  of  an  endowment 
mortis  causa  one  of  his  heirs)  a  yearly  payment  to  an  ecclesias- 
tical house,  which  assumed  in  return  therefor  the  performance  of 
spiritual  services.  This  was  done  either  by  the  donor's  convey- 
ing the  ownership  of  the  land  to  the  church,  receiving  it  back  as 
a  leasehold  subject  to  an  obligation  to  pay  the  rent,  or  by  his  re- 
serving the  ownership  to  himself  or  his  heirs  and  conveying  to 
the  church  merely  the  right  to  the  rents  with  which  he  charged 
the  land  in  perpetuity.  These  "  Giilten  ",  "  Zinsen  ",  were  al- 
ready true  "  Renten." 

In  the  1300  s  there  appeared,  finally,  the  true,  the  annuity  or 
money  interest  ("  Rente") ;  the  yearly  payment  for  money  capital 
loaned  to  another.     Increasing  commerce  increased  in  the  cities  the 

'  Arnold,  "Zur  Gesehichte  des  Eipentums  in  den  deutsehon  Stadten  " 
(18()1);  Rosenthal,  "Zur  Gesehichte  des  Kif^eutluiins  in  (U-r  Stadt  Wiirz- 
burg"  (1S7S) ;  Gohhcrs,  "Die  Erbleihe  iiiid  iln-  Verhiiltiiis  zuin  Rentenkanf 
im  mittelalterliehen  Koln  des  XII-XIV  Jahrhuiuhrts  ",  in  Z-.  R.  (>.,  IV 
(1883),  130-214;  Rehmc,  "Die  Liibeeker  Gruiulhauern,  Kin  IJeitrap:  zur 
Lehre  von  den  Reallasten"  (190.^);  Winiarz,  "Erlileihe  und  Rentenkauf 
in  Osterreieh  ob  und  unter  der  Enns",  no.  80  (lOOti)  of  Gierke  s  "Unter- 
suehungen";  Fr.  Beyerle,  "  Die  ewipen  Renlen  des  Mittelalters ",  in 
Vj.  Soz.  W.  O.,  IX  (1911),  401-40()  (with  refen^nee  to  )'.  Slcinpel,  "Die 
ewipen  Renten  und  ilire  Ablosunp;,  Zur  niittclalterlichou  Kirchengeschichte 
Deutschlands",  1910,  Leipzig  dissertation). 

370 


Chap.   VII]  THE    LAW    OF    LAXD  :     REAL    RIGHTS  [§  52 

demand  for  capital.  Houseowners,  in  particular,  required  it  for 
improvement  and  extension  of  their  dwellings  and  work-build- 
ings. On  the  other  hand,  as  early  as  the  1300  s  many  burghers, 
especially  the  greater  merchants  in  German  cities  {e.g.  Liibeck), 
had  accumulated  in  trade  considerable  capital  which  they  were 
desirous  of  profitably  investing.  The  only  form  of  secure  invest- 
ments theretofore  available  had  been  the  acquisition  of  land :  it 
was  possible  to  buy  a  piece  of  land  and  then  to  lease  it  for  a  "  Zins  ", 
—  preferably  under  a  heritable  lease.  Of  course,  as  time  passed, 
constantly  decreasing  importance  was  laid  upon  the  "  superior  " 
ownership  that  resulted  in  such  cases  to  the  lessor,  since  the  pur- 
pose of  the  transaction,  as  for  him,  consisted  simply  in  the  receipt 
of  a  permanent  and  secure  income.  This  inconvenient  form  of 
the  heritable  rent-lease  ("  Zinsleihe  ")  was  therefore  abandoned. 
In  place  of  it,  it  became  customary  for  the  capitalist  to  pay  a 
certain  sum  directly  to  the  owner  of  a  piece  of  land  in  return  for 
the  promise  of  a  capitalistic  rent  ("  Rente  ")  from  the  latter.  This 
rent  was  at  first  frequently  rendered  in  natural  products,  such  as 
small  grain,  corn,  or  wine ;  but  from  the  1300  s  onward  it  was 
ordinarily  rendered  in  money.  This  transaction  was  the"  Renten- 
kauf  "  or  purchase-rent,  an  annuity  contract.  It  satisfied  perfectly 
the  needs  of  both  parties,  the  landowner's  need  of  capital  and  the 
capitalist's  need  of  income,  and  therefore  gave  a  powerful  impulse 
to  economic  progress.  Its  increasing  adoption  was  also  furthered 
by  the  circumstance  that  the  church's  prohibition  of  interest 
("  Zins  ",  —  infra,  §  86)  was  no  impediment  to  its  collection ; 
on  the  contrary,  it  was  possible  to  maintain  that  prohibition  only 
because  the  "  Rentenkauf  "  fulfilled  the  economic  function  of  an 
interest-bearing  loan. 

This  capitalistic  rent  which  was  sold  by  the  owner  (the  debtor, 
the  "  Giiltmann  ")  out  of  his  land  in  return  for  a  sum  of  money 
paid  him  by  the  creditor  (the  rent-lord  or  "  Giilt-"  lord,  "  Rent- 
ner  ")  was  a  charge  upon  the  land.  But  it  was  distinguished  from 
the  older  land  charges  in  an  important  respect ;  for  it  had  no  con- 
nection whatever  with  any  relation  of  dependence,  personal  or 
real,  but  on  the  contrary  was  created  by  an  independent  legal 
transaction,  as  "  a  land  charge  of  a  purely  private  nature  whose 
elements  were  taken  exclusively  from  the  law  of  property."  ^ 
This  acknowledgment  of  a  rent,  however,  involved  a  limitation 
upon  the  owner's  estate,  in  the  interest  of  the  holder  of  the  rent, 
which  was  characteristic  of  land  charges.  Indeed,  the  charge  was 
1  Gierke,  "Privatreeht",  II,  754. 
371 


§  52]  THE    LAW    OF   THINGS  [BoOK   II 

conceived  of  "as  the  conveyance  of  an  incorporeal  portion  of 
landed  property  " ;  ^  and  it  was  treated,  as  the  German  law  of 
tliin^sjs  required,  as  an  incorporeal  immovable  thing,  a  seisin  in 
which  was  held  by  the  recipient  of  the  rent.  On  account  of  its 
character,  which  was  assimilated  to  the  qualities  of  land,  such  a 
rent  could  only  be  created  by  release  ("  Auflassung  ")  and  regis- 
tration. To  these  requirements  there  was  early  added  the  execu- 
tion of  a  public  document,  —  the  rent-deed  ("  Hentenbrief  ", 
"  Giiltbrief ").  This  was  often  treated  as  commercial  paper, 
the  transfer  of  the  paper,  accompanied  by  a  corresponding  in- 
formal contract,  sufficing  for  the  alienation  and  pledging  of  the 
rent.  Although  the  amount  of  the  rent  was  originally  determined 
by  free  agreement,  there  was  developed  at  an  early  day  (and  in 
this  connection  for  the  first  time)  a  fLxed  relation  between  capital 
and  interest ;  that  is,  a  fixed  rate  of  interest.  The  purchase 
price,  from  being  originally  very  high,  sank  generally  speaking 
to  a  sum  twenty  times  that  of  the  rent ;  in  other  words,  the  rent 
amounted  to  five  per  cent  of  the  purchase  price,  or  with  100  guldens 
of  capital  one  could  purchase  a  yearly  rent  of  five  guldens.  This 
was  established  as  the  maximum  legal  income  by  the  imperial 
police  ordinances  of  1530  and  1577. 

Like  other  land  charges,  the  annuity  charge  ("  Rentenschuld  ") 
was  distinctly  real  in  character ;  and,  indeed,  to  a  particularly 
marked  degree.  It  was  paid  by  the  temporary  owTier,  even  when 
he  had  known  nothing,  at  the  time  of  acquiring  the  land,  of  the 
rent  with  which  it  was  charged.  Of  course  he  was  also  liable  for 
unsatisfied  payments  accrued  in  the  time  of  earlier  possessors. 
Since  the  creditor's  security  lay  in  the  permanent  value  of  the 
house,  the  houseowner  required  the  consent  of  the  annuity  holder 
to  any  disposition  which  could  endanger  its  value.  In  case  pay- 
ment was  not  duly  made  the  creditor  possessed  a  right  of  dis- 
traint ("  Pfiindungsrecht ")  against  the  chattels  he  might  find  upon 
the  land.  If  these  were  insufficient  for  the  complete  satisfaction 
of  his  claim,  he  could  go  against  the  land,  —  and  against  this  alone. 
It  was  conveyed  to  him  by  means  of  a  special  execution  process. 

The  sale  of  the  "  Rente  "  involved,  in  tlu^ory,  a  definitive 
conveyance  of  the  rent  regarded  as  an  incorporeal  part  of 
the  land.  In  theory  the  rent  was  perpetual.  If  the  parties  or 
their  legal  successors  desired  to  rescind  the  transaction,  the  owner 
of  the  land  was  bound  to  repurchase  the  rent  he  had  sold.  Such 
a  repurchase,  —  that  is,  such  a  redemption  of  the  rent,  —  could 
'  Gierke,  "  Privatrecht  ",  II,  754. 
372 


Chap,   VII]  THE    LAW    OF   LAND  :     REAL    RIGHTS  [§  52 

therefore  originally  be  accomplished  only  by  contract.  At  an 
early  day,  however,  such  redemption  was  commonly  made  easier 
to  the  debtor  by  giving  him,  at  the  time  the  annuity  was  created, 
the  right  of  repurchase. 

In  this  manner  he  could  redeem  the  rent  at  any  time  by  repay- 
ment of  the  purchase  price.  In  many  cities,  and  still  later  in 
some  of  the  Territories  of  the  Empire,  the  right  was  ultimately 
given  to  the  debtor  by  statute  to  redeem  the  rent  by  payment  of 
a  capital  sum,  even  without  any  contractual  pre-determination 
of  its  amount.  The  imperial  police  ordinances  of  1548  and  1577 
made  this  the  rule  of  the  common  law.  On  the  other  hand,  the 
older  law  of  rents  knew  absolutely  no  right  of  redemption-notice 
on  the  part  of  the  creditor;  as  late  as  the  1500  s  the  statutes  of 
the  Empire  expressly  prohibited  such  a  right ;  its  creation  by  con- 
tract was  also  forbidden,  save  that  it  was  permitted  in  one  excep- 
tional case,  namely,  default)  by  the  imperial  Recess  of  1600. 

All  this,  however,  could  not  prevent  a  considerable  change  in 
the  old  institute  after  the  Reception.  The  endeavor  to  make 
such  rents  freely  redeemable  made  futile  all  statutory  fetters ;  in 
the  IGOO  s  it  became  permissible  and  usual  to  concede  a  right  of 
redemption-notice  to  the  creditor,  also.  This  step,  alone,  accom- 
plished much  toward  approximating  the  capitalistic  rent  to  the 
loan  ("  Darlehn  ")  secured  by  a  hypothec.  And  this  process 
was  carried  still  further  when  its  character  as  a  purely  real 
debt  was  disregarded  at  a  very  early  day,  a  liability  being 
imposed,  first  upon  other  lands,  and  later  upon  all  other  property 
whatever,  of  the  debtor  ("  Fiirpfand  ").  With  this  change  the 
"  Rentenkauf "  was  completely  transformed  into  an  interest- 
bearing  loan  secured  by  pledge.  And  when  the  Canonic  prohibi- 
tion of  interest  lost  effect  there  was  no  longer  any  reason  for  re- 
taining it  as  an  independent  legal  institute.  In  its  place  there 
appeared  the  modern  hypothec,  in  which,  however,  "  the  elements 
derived  from  the  '  Rentenkauf  '  remained  more  or  less  vital."  ^ 

At  the  same  time  the  capitalistic  rent  ("  Giilt  ",  "  Rente  "), 
retained,  here  and  there,  its  old  independence.  This  was  true 
in  many  parts  of  Switzerland,  and  of  the  "  Ewiggeld  "  (perpet- 
ual-geld)  of  IMunich.  The  latter  was  only  abolished  in  1900 
by  the  Civil  Code;  the  numerous  "  Ewiggelder  "  then  existing 
have  been  converted  into  annuity  charges  ("  Rentenschulden  ").^ 

'  Gierke,  "  Privatrecht  ",  II,  7G3. 

-  Lippmann,  "Das  Ewiggeld  in  Miinchen"  (Erlangen  dissertation, 
1910). 

373 


§  52]  THE    LAW    OF   THINGS  [BoOK   II 

Inasmuch,  however,  as  neither  the  earHer  State  law  nor  the 
present  imperial  law  excludes  the  creation  of  "  Rcnten  "  as  per- 
petual land  charges  ("  Reallasten  "),  but  on  the  contrary  have 
abolished  only  irredeemable  perpetual  "Renten  ",  the  rent  charge 
("  Rentenbelastung  "),  which  has  best  satisfied  the  credit  necessi- 
ties of  landowners,  has  recently  acquired  increased  importance. 
The  redemption  rents  mentioned  on  page  307  supra  are  rent  charges 
("  Rentenlasten  ")  in  the  old  sense.  But,  above  all,  there  belong 
here  the  estates  subject  to  a  rent  charge  ("  Rentengiiter  ")  that 
have  been  introduced  in  very  recent  Prussian  legislation  :  the  pur- 
chase price  of  these  is  not  delivered  at  one  time  in  a  single  capital 
sum,  but  as  a  rent  which  is  imposed  upon  the  land  as  a  real 
charge,  and  which  is  to  be  extinguished  in  a  certain  time  by 
amortisation.  (See  the  statutes  referred  to  on  pp.  367,  370  supra, 
as  well  as  the  Mecklenburg  Act  of  May  24,  1898.) 

Finally,  the  Civil  Code  recognizes  a  special  institute  known  as 
the  "  Rentenschuld  ",  —  a  limited  annuity-charge.  This,  accord- 
ingly, is  not  classed  by  it  among  "Reallasten",  but  is  treated  as 
a  special  form  of  the  land-debt  ("  Grundschuld  " ;  infra,  p.  393). 

Topic  4.     The  Pledge  of  Land 

§  53.  The  Older  Germanic  Law  of  Land  Pledges.^  (I)  Con- 
cept.—  A  right  of  pledge  ("  Pfandrecht  ")  also  conveys  a  real 
-right  in  the  object  pledged. 

One  consistent  legal  concept  underlies  the  Germanic  law  of 
pledge  from  the  beginning  and  in  all  its  later  forms  of  development. 
This  is  the  idea  of  liability  ("  Haftung  "),  such  as  it  has  been 
revealed  to  us  by  modern  researches  in  the  sources  of  Germanic 
law.  It  will  be  more  carefully  considered  below  (§  68)  in  the 
introduction  to  the  chapter  on  the  law  of  obligations ;  beyond  a 
reference  to  that  discussion,  it  is  only  necessary  in  this  place  to 
point  out  a  few  important  matters. 

^  V.  Meibom,  "Das  deutsohe  Pfandrecht"  (1S67) ;  Franken,  "Ge- 
schichte  des  franzosisehen  Pfandreclits,  I  :  Das  franzosisehe  Pfandrecht 
im  Mittelalter"  (1879);  Kohhr,  "Pfandrcchtlieho  Forschungen"  (1S82) ; 
V.  Sclurind,  "Weson  und  Inhalt  des  Pfanch-echts"  (1899);  Eggcr,  "Ver- 
nuigcnsliaftunt^  und  Ilypolhek  nach  frankischein  Ke('ht",no.  (»9  (1903) 
of  Clicrkr'.s  "  Untersuchunsjfcn"  ;  Kapras,  "Das  Pfandrecht  im  holiniisch- 
mahrischen  Stadt-  und  Herjireclile ".  no.  83  (19()())  of  (Gierke's  "Unter- 
suehunfjen";  llazcUinc,  "Die  G<'schiclite  des  KngHschen  Pfandrechts", 
no.  92  (1907),  of  Gierke's  "Untersuchunfjen"  ;  O.  Gierke,  "Schuld  und 
Ilaftunfj"  (1910),  2(5  el  srq.;  cf.  §  (i8  infra;  Caillemer,  "  Les  formes  et  la 
nature  de  I'ensafjement  immohilier  dans  la  rejjion  Lyonnaise  (X^-XIII* 
sificJes)",  in  the  "Festschrift  fur  H.  Brunner"  (1911),"  279-307. 

374 


Chap.  VIl]  THE   LAW   OF  LAND  :     EEAL   RIGHTS  [§  53 

"  Haften  "  means  "  einstehen  ",  to  give  security  or  warranty, 
—  namely,  for  the  performance  of  legal  duty  or  obligation 
("  Schuld  ").  The  obligee  requires  a  security  that  no  harm  shall 
come  to  him,  under  any  circumstances,  from  the  transaction  into 
which  he  has  entered  with  the  obligor.  To  this  end  a  liability 
is  created.  This  is  accomplished  in  various  ways.  In  this  place 
we  are  concerned  only  with  the  case  where  a  definite  thing  is  sub- 
jected to  the  liability.  This  thing,  whether  it  be  a  piece  of  land 
or  a  chattel,  is  made  liable  ("  verhaftet  ")  to  the  creditor,  in  order 
that  he  may  have  recourse  to  it  in  case  the  obligation  be  not 
performed.  It  is  "  settled  ",  "  exposed  ",  "  pawned  "  ("  gesetzt  ", 
"  ausgesetzt  ",  "  versetzt  ") ;  it  is  the  pledge  ("  Einsatz  "),  like  the 
wed  of  the  formal  contract  ("  Wettvertrag  ")•  Thence  the  terms 
"  wadium  ",  "  Wette  ",  "  Weddeschaft  "  —  the  "vadium  ",  wed ; 
words  which  are  derived  from  the  old  verb  "  vidan  ",  "  to  bind  ", 
and  express  the  idea  that  the  object  pledged  is  bound  or  "  entan- 
gled "  ("  Verstrickung  ")  in  the  interest  of  the  creditor.  The 
pledge  is  bound  by  the  "  settlement  "  ("  Satzung  ").  It  is  only 
freed  from  this  restriction  when  the  debtor  has  paid  his  debt; 
that  is  the  redemption  of  the  pledge. 

The  Germanic  law  of  pledge  was  therefore  originally  a  law  of 
liability.  And,  further,  it  originally  involved  merely  liability 
of  a  thing  ("  Sachhaftung  ").  Only  in  this  form  did  it  exactly 
express  the  Germanic  conception  of  a  pledge  right.  The  creditor 
had  recourse  exclusively  against  the  thing  pledged.  ^Yith  other 
property,  and  with  the  person  of  the  debtor,  he  was  not  concerned. 
But  he  received  a  real  right  in  the  pledge. 

These  are  the  common  and  central  principles  of  the  whole  Ger- 
manic law  of  pledge.  At  an  early  day,  however,  the  law  of  chattel- 
pledge  and  of  land-pledge  (gage)  were  differently  developed. 
At  this  point  we  have  only  to  speak  of  the  former.  Nor  are  we 
concerned  with  any  other  than  the  "  given  "  ("  gesetzte  ")  pledge  ; 
that  is,  that  which  was  created  by  contract  or  which  rested  upon 
statute.  Germanic  law  knew,  in  addition  to  this,  a  "  taken  " 
("  genommene  ")  pledge,  the  distress  by  self-help;  but  this  we 
shall  consider  only  later,  in  connection  with  the  chattel-pledge. 

(II)  Early  Stages  of  Development.  Conditional  Conveyances. 
The  Proprietary  Gage.  —  In  the  earlier  stages  of  its  develoi)ment 
the  law  had  only  a  clumsy  form  by  which  to  make  land  liable  to 
a  creditor.  Practically  no  credit  existed  during  the  continuance 
of  an  agricultural  economy  poor  in  commerce.  Security  for  a 
debt  could  therefore  be  created  only  by  giving  to  the  creditor 

375 


§  53]  THE    LAW    OF   THINGS  [BoOK   11 

some  object  of  value,  which,  in  case  the  debtor  failed  to  satisfy 
the  debt,  might  serve  as  a  final  and  complete  substitute  for  the 
defaulted  payment.  ^Moreover,  a  conveyance  of  ownership  was 
the  only  legal  form  the  Germanic  law  originally  possessed  that 
could  be  made  use  of  in  this  connection.  The  oldest  form  of  a 
gage  of  lands  was  the  proprietary  gage  ("  Eigentumspfand  ") ; 
regarded  from  the  standpoint  of  the  later  develoi)ment,  it  might 
be  called  a  preliminary  stage  in  the  law  of  land  pledges,  properly 
speaking.  But,  as  already  stated,  the  land  so  conveyed  served 
as  the  equivalent  of  the  defaulted  payment  only  in  case  of  the 
non-payment  of  the  debt ;  in  other  words,  only  upon  condition 
that  the  debtor  failed  to  redeem  the  pledge.  The  ownership  in 
the  land  gaged  was  therefore  only  conditionally  conveyed  to  the 
creditor;  seisin  was  given  him  only  by  a  conditional  investiture, 
which  was  realized  by  preference  "  incorporeally  ",  by  delivery  of  a 
deed.  This  legal  form,  comparable  with  the  old-Roman  "  fiducia  ", 
appears  in  the  Germanic  systems  of  the  continent  in  the  period 
of  the  folk-laws ;   it  was  also  common  in  the  Anglo-Saxon  law. 

The  condition  attached  to  the  in\estiture  might  be  expressed 
as  one  either  subsequent  or  precedent.  The  condition  subse- 
quent was  more  usual :  the  ownership  of  the  pledgee  was  to  be 
extinguished  in  case  the  debt  should  be  paid.  This  transaction 
remained  in  common  use  even  after  the  appearance  of  more  ma- 
ture types  of  pledge.  It  took  the  outward  form  of  a  sale  subject 
to  a  reservation  of  repurchase :  the  debtor  transferred  (sold)  the 
land  to  the  pledgee  in  exchange  for  a  sum  of  money  he  received 
as  a  loan,  and  to  secure  which  the  pledge  was  given  ;  by  repayment 
he  repurchased  the  pledge.  But  although  the  transaction  was 
often  conceived  of  in  this  manner,  and  actually  developed  later 
into  a  sale  subject  to  repurchase  ("  Verkauf  auf  Wiederkauf  "), 
nevertheless  it  was  always  distinguished  from  a  sale  by  the  fact 
that  the  pledgee  could  not,  like  other  purchasers,  resell  the  thing 
on  his  own  account.  In  the  less  usual  case  of  investiture  subject 
to  a  condition  precedent  the  alienor  (the  pledgor  or  debtor)  said, 
in  effect,  to  the  alienee  (creditor,  pledgee)  :  if  I  do  not  keep  my 
contract,  —  if  I  do  not  pay  the  debt  within  a  definite  time,  —  it 
shall  be  considered  that  I  have  sold  this  land  to  you  by  delivery 
of  this  deed,  and  as  of  its  date.^ 

Aside  from  this  less  common  form,  which  did  permit  the  debtor 
to  remain  temporarily  in  possession  of  the  land,  the  proprietary- 
gage,  based  upon  a  transfer  of  seisin,  involved  great  disadvantages 
'  Brunner,  " Forschungea "  (1894),  G21. 
37G 


Chap.  MI]  THE   LAW   OF   LAND  :     REAL   RIGHTS  [§  53 

for  the  pledgor.  Not  only  was  he  exposed  to  the  danger  that  his 
creditor  might  receive  a  piece  of  land  of  greater  value  than  the 
debt,  but  he  was  frequently  not  in  a  situation  to  give  the  convey- 
ance, —  for  lack  of  the  consent  of  his  kindred  {infra,  §  55)  or 
of  his  lord  (supra,  p.  326)  that  was  required  in  alienation,  —  in 
which  cases  he  was  compelled  to  renounce  securing  credit.  As 
time  passed,  therefore,  the  proprietary- gage  became  less  usual, 
except  as  it  was  tranformed  into  a  sale  subject  to  repurchase. 

(Ill)  The  "  Older  "  Form  of  Land-pledge  or  Usufruct  Gage 
"  altere  Satzung  ",  "  Xutzungspfand  ").  —  Inasmuch  as  the 
value  of  lands  in  an  agricultural  age  consisted  solely  in  their  prod- 
uct, it  was  a  natural  step  to  give  these  to  the  creditor  as  security, 
without  attempting  to  alter,  the  rights  of  ownership.  Hence 
arose  a  usufruct-gage,  known  in  legal  literature  as  the  "  older  " 
pledge  ("  altere  Satzung  "),  —  the  "  engagement  "  of  the  French 
law.  The  grant  of  the  profits  to  the  pledgee  was  accomplished, 
in  accord  with  the  general  principles  of  the  medieval  land  law, 
by  a  transfer  of  the  seisin  to  him  from  the  owner  of  the  land 
pledged.  This  was  the  seisin  "  ut  de  vadio  ",  "  as  of  gage  " 
("  pfandliche  Gewere  ",  "  Satzungsgewere  "),  which  was  the  cover 
of  an  independent  real  right  in  the  land ;  namely,  a  pledge 
right.  The  transfer  of  seisin  was  accomplished  in  a  formal 
manner  prescribed  by  law;  ordinarily  before  the  court  or  city 
council  and  with  the  consent  of  the  heirs,  but — in  this  respect 
like  the  investiture  of  the  feudal  law  (supra,  p.  338)  —  without  re- 
lease. The  pledgee,  as  the  holder  of  the  physical  ("  leibliche  ") 
seisin,  the  seisin  "  ut  de  vadio  ",  collected  the  profits  of  the 
land. 

(1)  Moreover,  it  was  a  rule  in  all  Germanic  lands  that  he  col- 
lected them  for  his  own  exclusive  use,  in  place  of  interest  upon 
the  money  loaned  the  debtor.  Such  a  gage  was  therefore  known 
as  an  "  interest-gage  "  ("  Zinssatzung  "),  and  also  a  perpetual-gage 
("  Ewigsatzung  "),  because  the  continuance  of  the  right  to  the 
profits  depended  only  upon  the  repayment  of  the  capital,  which 
was  often  not  at  all  contemplated.  It  was  particularly  common 
not  to  repay  the  sum  borrowed  upon  pledges  'of  sovereign  rights, 
especially  in  the  case  of  so-called  "  Reichspfandschaften  "  (pledges 
of  imperial  privileges) :  kings  and  princes  who  were  in  need  of 
money  were  not  at  all  disposed  ever  to  repay  the  sums  they  re- 
ceived (usually  from  the  imperial  cities).  In  case  of  an  interest- 
gage,  therefore,  the  usufruct  granted  to  the  pledgee  did  not 
diminish  the  capital  of  the  debt,  for  which  reason  this  form  of 

377 


§  53]  THE    LAW    OF   THINGS  [BoOK  II 

pledge  was  known  in  France  as  a  "  mortgage  ",  and  in  Eng- 
land as  a  "  mortnnni  vadinm  "  ;  it  was  an  "  unabniessendes  " 
gage,  a  gage  nnlessened  l)y  tlie  nsnfruct.  The  Cluireh  for- 
bade it,  as  being  a  violation  of  the  Canonic  prohibition  of  usury 
(infra,  §  SG).  It  was  sought  to  lessen  the  prejudice  to  the  debtor 
which  it  might  very  easily  involve  by  a  provision  that  in  case  the 
profits  amounted  to  more  than  a  certain  interest  upon  the  loan 
(usually  the  rate  of  10  per  cent,  was  adopted),  the  creditor  should 
either  be  restricted  to  a  portion  of  the  profits  or  obligated  to  pay 
interest,  in  his  turn,  to  the  debtor  (the  owner)  upon  the  excess 
profits  taken.  In  such  cases  the  relation  between  the  parties 
approached  a  lease  ("  gepachtete  Satzung  ",  pledge-lease). 

(2)  Along  with  the  interest-gage  ("  mortuum  vadium  ")  there 
was  also  employed  in  Germany,  although  much  less  frequently 
than  elsewhere,  the  so-called  "  live  ''-gage.  In  the  French  law, 
on  the  contrary,  this  was  the  more  common.  In  the  "  live  "- 
gage  the  profits  collected  were  reckoned  against  the  capital  debt, 
thus  effecting  gradually  its  extinction,  whence  the  German  name 
"  dead  "  "  dead  "-gage  ("  Totsatzung  ",  "  dotsate  ")  ;  whereas 
the  French  law  spoke  in  this  same  connection  of  a  "  vifgage  ", 
and  the  English  of  a  "  vivum  vadium  ",  because  the  pledge  did 
not  lie  as  though  dead  but  exercised  a  living  effect.  The  Church 
favored  the  "  vivum  vadium." 

Seisin  "  ut  de  vadio  "  ("  Sntzungsgewere  ")  created  in  the 
pledgee  merely  a  heritable  and  assignable  right  of  usufruct,  not 
a  right  to  dispose  of  the  substance  of  the  land.  The  dispositive 
power  over  the  title  remained,  with  the  ownership,  in  the  pledgor. 
His  proprietary  seisin  was,  it  is  true,  in  complete  abeyance,  save 
in  those  exceptional  cases  in  which  interest  ("  Zins  ")  was  granted 
to  him  by  the  pledgee.  The  pledge  relation  was  ended  only  by 
redemption,  the  repayment  of  the  sum  loaned,  the  satisfaction 
of  the  debt,  —  at  least  in  the  case  of  the  "  mortuum  vivum  " 
(interest-gage)  ;  it  alone  released  the  land  from  the  bond  of  the 
pledge  and  permitted  it  to  pass  again  into  the  seisin  of  the  owner. 
In  the  absence  of  definite  provisions  the  debtor  had  the  right 
of  redemption  at  any  moment ;  on  the  other  hand,  the  creditor 
had  no  right  to  demand  redemption. 

(3)  If  no  redemption  took  place,  the  pledge  relation  simply 
continued.  However,  as -the  land  passed  immediately  to  the 
creditor,  in  the  case  of  a  proprietary-gage  subject  to  a  condition 
precedent,  upon  default  in  payment  in  accord  with  the  contract, 
so  also  the  usufruct-gage  ("  jiltere  Satzung  ")  might  be  associated 

378 


Ch.^.   VII]  THE    LAW    OF   LAMD  :     REAL    RIGHTS  [§  53 

with  a  conditional  conveyance.  In  this  case  it  assumed  the  char- 
acter of  ?i  forfeiture-gage  ("  Verfallpfand  ").  The  forfeiture-gage 
was  especially  dangerous  for  the  debtor  ;  for  no  account  was  taken 
of  any  difference  between  the  value  of  the  land  pledged  and  the 
amount  of  the  debt.  The  surplus  value  of  the  land,  if  any,  accrued 
to  the  creditor  without  further  formality. 

(4)  Hence  the  forfeiture-gage  was  replaced  in  many  legal  sys- 
tems by  the  sale-gage  {"  Verkaufspfand  ",  "  Distraktionspfand  "). 
In  this  the  creditor  generally  possessed  no  right  of  alienation, 
but  he  might  repledge  the  gage,  and  was  also  permitted  to  sell 
the  land  under  a  judicial  power  after  precedent  warning  to  the 
debtor,  and  to  apply  the  purchase  money  thus  realized  to  the 
satisfaction  of  his  claim.  But  in  this  case  he  must  deliver  to 
the  debtor  any  surplus  realized. 

The  sale-gage,  as  compared  with  the  forfeiture-gage,  represented 
a  mode  of  satisfying  the  creditor  that  corresponded  to  more  de- 
veloped economic  relations.  For  the  sale  of  the  pledge  offered 
advantages  only  as  transactions  in  lands  became  more  common. 

In  the  case  of  the  forfeiture-gage,  as  just  stated,  the  excess 
value  of  the  land  accrued  to  the  creditor  alone ;  but  the  reverse 
was  also  true  —  namely,  that  he  alone  suffered  from  any  possible 
loss  due  to  deterioration  or  destruction  of  the  pledge :  "  if 
the  value  of  the  land  did  not  amount  to  the  debt,  he  was  obliged 
to  drink  the  bitter  drop  since  he  had  already  enjoyed  the  sweet."  ^ 
This  fact  shows  that  there  was  involved  in  the  usufruct  gage  a 
pure  case  of  real  liability  ("  Sachhaftung  ")  :  the  land  pledged 
was  the  sole  security  of  the  creditor,  and  he  could  proceed  against 
it  alone.  If  perchance  he  was  to  have  a  right  of  action  against 
the  person  or  the  other  property  of  the  debtor  this  must  be  ex- 
pressly agreed  upon.  The  obligation  to  return  any  surplus  value 
above  the  debt  therefore  represented  a  relaxation  of  the  principle 
of   real-liability. 

(IV)  The  Hypothec  :  the  "  younger  "  Form  of  Land- Pledge,  or 
Execution  Gage.  —  It  might  happen  even  in  the  case  of  the  usufruct 
("  older  ")  gage  that  the  pledgee  reconveyed  the  seisin  of  the  pledged 
land  to  his  debtor,  the  owner :  he  allowed  him  to  remain  upon  the 
land  and  to  dwell  in  the  house  he  had  pledged,  or  granted  him  a 
feudal  seisin,  a  trustee's  seisin  ("  zu  getreuer  Hand  "),  or  a  hirer's 
("  Miets-")  seisin,  —  and  contented  himself  with  collecting  from 
the  debtor  in  exchange  a  rent  ("  Zins  "),  which  might  well  be 
to  him  of  as  much  economic  value  as  the  direct  usufruct  of  the 
^v.  Amira,  "Obligationenreeht ",  I  (1882),  206. 
.379 


§  53]  THE    LAW    OF   THINGS  [BoOK  II 

property.  Moreover,  there  were  cases  in  which  it  did  not  appear 
desirable  to  convey  the  seisin  "  ut  de  vadio  "  immediately  to  the 
creditor,  because  it  was  still  uncertain  whether  a  debt  would  arise 
at  all,  or  of  what  amount.  The  owner  might,  for  example,  give 
security  for  a  warranty  he  had  assumed  to  the  pledgee.  In  this 
case  the  creditor  could  not  demand  immediate  security  ("  Deck- 
ung  ") ;  he  was  content  if  the  land  was  put  in  pledge  by  the  con- 
veyance to  him  of  a  mere  right  in  expectancy. 

Thus  there  existed  various  reasons  for  creating  or  recognizing 
gages  of  lands  even  without  the  conveyance  of  a  pledge-seisin. 
This  new  idea,  embodied  in  such  transactions,  was  of  the  greatest 
value,  for  it  first  made  it  possible  to  free  the  gage  of  land,  even 
in  theory,  from  the  necessity  of  a  transfer  of  possession,  which 
remained  at  the  best  onerous  enough  to  the  debtor,  although  not 
in  the  same  degree  as  the  conditional  conveyance  that  was  for- 
merly required. 

This  new  idea  was  first  triumphantly  established  in  the  flourish- 
ing cities,  where  it  created  an  institute  of  pledge  law  resting  upon 
wholly  new  foundations.  This  was  the  so-called  execution  or 
"  younger '^  gage  ("  jungere  Satzung  ",  "  Fronungspfand  "), — 
the  "  obligation  "  of  the  French  law.  In  it  there  were  applied 
to  new  purposes  certain  procedural  rules  derived  from  great  antiq- 
uity. In  the  oldest  stage  of  the  law  no  means  of  judicial  execu- 
tion was  known ;  if  a  debtor  did  not  fulfill  his  legal  obligations, 
he  could  be  proceeded  against  only  through  distress  ("  Pfjind- 
ung ")  of  his  goods  by  his  creditor,  and  outlawry  from  the 
community.  It  was  only  later  that  distress  by  public  authorities 
(execution)  was  introduced  ;  first  in  the  case  of  movables,  and 
then,  in  the  Carolingian  period,  also  in  the  case  of  lands.  Execu- 
tion against  lands  was  modeled  after  the  fashion  of  the  old  out- 
lawry, which  had  affected  not  only  the  person  l)ut  also  the  land  of 
the  outlaw.  "  In  this  outlawry  of  land  the  king  found  a  means 
of  satisfying  the  lack  that  was  felt  of  an  execution  against  immov- 
ables, the  outlawry  being  made  efi'ective  only  so  far  as  was  abso- 
lutely necessary  for  this  purpose."  ^  The  entire  estate  of  the 
defaulting  debtor  (obligor),  movable  and  immovable,  "  was  laid 
under  the  ban  of  the  crown,  was  definitely  confiscated  after  the 
expiration  of  a  year  and  a  day,  and,  so  far  as  the  claim  of  the  credi- 
tor who  invoked  the  executory  process  made  it  necessary,  was 
applied  in  satisfaction  thereof."  ^  This  was  the  so-called  "  Fron- 
ung  ",  —  also  designated,  in  the  Frankish  sources,  "  missio  in 
'  Brunner,  " Gcschichte",  I  (2d  ed.),  409.  «  Ibid. 

380 


Chap.  VII]  THE   LAW   OF   LAND  [§  53 

bannum  regis  ",  — the  importance  of  which  in  the  origin  of  judi- 
cial seisin  has  already  been  discussed  {supra,  p.  201).  Its  effect 
was  "  a  provisional  subjection  to  the  satisfaction  of  the  claim  " 
("  Beschlagnahme  "  ;  modern,  levy  on  execution).^  The  possessor 
was  deprived  of  the  possession  of  the  land ;  he  lost  the  right  to 
dispose  of  it.  He  could,  however,  redeem  the  estate  from  the  ban 
by  payment  of  the  sum  owed  within  a  year  and  a  day.  As  the 
next  step,  such  executions  against  land  in  favor  of  creditors  became 
free  from  their  old  association  with  the  law  of  procedure,  and  were 
developed  as  a  part  of  the  law  of  pledge.  It  became  possible 
for  the  debtor  to  make  a  pledge  of  lands  in  such  manner  that  he 
himself  retained  the  possession  and  the  profits  while  conceding 
to  the  creditor,  in  case  of  forfeiture,  the  rights  of  a  creditor  "  who 
had  obtained  a  judgment  for  the  debt  against  his  debtor,  and 
for  execution  against  the  land."  ^  From  this  time  on  the  debtor's 
estate  was  regarded  as  bound  by  judicial  levy ;  "  it  was  in  judicial 
custody  ("  kummer  ",  "  besatz  ")  for  the  creditor's  benefit."  ^ 
In  this  manner  both  parties  were  far  better  served  than  by  the 
older  usufruct-gage.  The  debtor  remained  in  possession,  yet 
the  security  afforded  to  the  creditor  was  one  entirely  sufficient. 
For  inasmuch  as  the  land  was  regarded  as  judicially  levied  upon, 
he  only  needed,  in  case  of  default,  "  to  take  the  second  and  remain- 
ing step  in  the  process  of  judicial  execution  "  ;  ^  that  is,  to  secure 
satisfaction  of  his  claim  from  the  estate  by  means  of  judicial  execu- 
tion. This  newer  form  of  gage  was  therefore  also  designated  an 
execution-gage  ("  Fronungs-",  "  Exekutionspfand  ").  We  can 
readily  understand  that  this  form  of  pledge  was  especially  common 
in  the  cities,  notwithstanding  that  it  was  by  no  means  peculiar 
to  the  town  law,  and  did  not  by  any  means  wholly  displace  there 
the  older  or  usufruct-gage.  For  one  thing,  since  the  creditor 
renounced  any  immediate  delivery  of  the  object  which  was  his 
security  it  presupposed  relatively  advanced  conditions  of  credit ; 
and  these  developed,  of  course,  earliest  in  the  cities.  Further, 
the  occupant  of  an  urban  house,  who  generally  possessed  only 
the  house  in  which  he  worked,  and  not  several  acres  of  land, 
was  in  no  position  to  transfer  portions  of  his  property  to  a 
creditor,  as  a  rural  landowner  commonly  could,  without  being 
thereby  compelled  to  abandon  his  means  of  livelihood.     Finally, 

1  Brunner,  "  Geschichte  ",  II.  458. 

2  Brunner,  "Oriiiidzuge"  (5th  ed.).  219. 
'  Schroder,  "Lehrbuch"  (5th  ed.),  745. 

''  Brunner,  op.  cit. 

381 


§  53]  THE    LAW    OF   THINGS  [BoOK  II 

as  a  rule  the  capitalist  was  no  longer  better  served  by  a  con- 
veyance of  the  profits ;  the  security  that  was  assured  him 
sufficed.  For  these  reasons  the  execution-gage  really  appeared 
"  as  a  form  of  pledge  happily  adapted  to  urban  relations."  ^ 

This  more  modern  form  of  gage  was  created  by  definite  legal 
formalities  which  guaranteed  publicity  The  parties  made  their 
declarations  before  the  court  or  the  city  council ;  this  was  followed 
by  the  ban  proclaimed  by  the  authorities,  and  thereafter  the  gage 
was  registered  in  the  pul)lic  records.  Here  also  there  was  no 
release  of  seisin  ("  Auflassung  ").  In  some  localities  the  only 
necessary  formality  was  the  delivery  of  a  document  declaratory 
of  the  i)lcdge,  —  the  "  house  "  or  "  inheritance  "  deed  ("  Haus-", 
"  Erbcbricf  "). 

According  to  the  better  view,  the  execution-gage,  like  the 
usufruct-gage,  gave  the  pledgee  a  real  right  in  the  land  pledged, 
as  the  skevins  of  ^Magdeburg  took  occasion  expressly  to  declare 
in  answer  to  a  case  submitted  to  them.^  Of  course  it  is  to  be  re- 
membered that  inasmuch  as  neither  the  ownership  nor  the  right 
of  usufruct  was  conveyed  to  the  creditor,  his  right  could  not  be 
evidenced  in  any  actual  physical  seisin  in  the  lands.^  He  did 
receive,  however,  as  a  result  of  the  public  character  of  the  act  by 
which  the  pledge  was  created  and  which  made  his  right  visible, 
a  seisin  in  expectancy  (supra,  p.  193)  in  the  estate ;  at  the  same 
time  he  also  received,  in  accord  with  the  earlier  view  of  Ger- 
manic law  which  we  have  already  discussed,  "  a  present  seisin-of- 
rights  ("  Rechtsgewere  ")  in  the  right  of  pledge  accorded  to  him."  ^ 
That  he  actually  possessed  a  real  right  in  the  estate  is  shown 
by  the  fact  that  in  case  the  debtor  alienated  his  estate  notwith- 
standing the  ban  that  had  been  laid  upon  it,  thereby  lessening  the 
pledgee's  right,  the  latter  could  make  his  right  good  against  the 
new  acquirer  for  a  year  and  a  day ;  or,  as  in  the  Magdeburg 
law,  could  demand  the  cancellation  of  the  conveyance  and  the 
return  of  the  estate  to  the  debtor's  possession.  For  this  reason 
the  owner  was  originally  forbidden  to  made  any  alienation  what- 
ever of  a  pledged  estate  without  the  consent  of  the  creditor,  — 
in  the  absence  of  such  provisions,  he  was  in  a  position  to  do  so, 
since  both  the  property  and  the  full  physical  seisin  in  the  thing 

'  Slohbe-Lehmnnn,  II,  2  (3d  ed.),  122. 

2  To  tho  question  who  has  the  "besser  gewere",  he  to  whom  the  land 
is  pledged  in  the  "hedged"  folk-oourt  or  the  pledgor,  "ah  er  nil  wol  blebe 
in  deme  erbe",  the  answer  is:  "wirt  eyme  eyn  erbe  vor  gerichte  gesaczt, 
der  hat  eyne  rechte  gewere  doran",  —  "Magdeb.  Fragen",  I,  0,  8. 

3  Gierke,  "Privatrecht ",  II,  820.  ■•  Ibid. 

382 


Chap.  VII]  THE    LAW    OF   LAND  :     REAL    RIGHTS  [§  53 

("  Sachgewere  ")  remained  in  him.  Later,  even  the  right  of 
ahenation  was  conceded  to  him ;  but  this  had  its  reverse  side  in 
the  creditor's  right  to  follow  the  land,  above  adverted  to.  In 
time  there  was  deduced  from  the  fact  that  the  ownership  remained 
in  the  debtor  the  conclusion  that  he  could  pledge  the  same  estate 
repeatedly ;  which  was  of  course  impossible  in  the  case  of  the  usu- 
fruct-gage. As  in  the  case  of  the  purchase-rent  ("  Rentenkauf  "), 
the  value  of  the  land  was  conceived  of  as  divided  into  several 
parts,  of  which  each  was  liable  for  one  claim  only.  A  later  gage 
covered  that  portion  of  the  value  which  had  remained  uncovered ; 
and  therefore  the  right  to  satisfy  the  earlier  gage  was  necessarily 
prior.  The  only  requirement  was  that  the  debtor  should,  in  such 
a  case,  give  an  honest  notice  as  to  the  number  of  charges  that 
already  rested  upon  the  estate.  It  was  precisely  in  this  possi- 
bility of  repeated  pledges  that  there  lay  the  chief  advantage  of 
the  execution-gage  as  compared  with  other  forms  of  pledge. 

The  satisfaction  of  the  creditor's  claim  upon  default  in  pay- 
ment of  the  debt  was  always  realized  in  the  case  of  the  execution 
("  newer  ")  gage  with  the  cooperation  of  the  public  authorities ; 
that  is,  by  execution,  which  the  creditor  could  henceforth  initiate 
of  his  own  notion.  This  execution  might  proceed  as  in  the  case 
of  a  forfeiture-gage ;  and  in  earlier  times  it  very  often  took  place 
in  this  manner.  In  such  case  the  creditor  was  first  invested  with 
the  physical  seisin  in  court ;  thereupon  the  owner  was  notified 
by  judicial  citation  to  satisfy  the  debt  within  a  period  stated ; 
and  after  the  expiration  of  such  period  without  performance  the 
ownership  was  judicially  declared  to  be  in  the  creditor.  Soon, 
however,  it  became  usual,  first  in  South  and  then  also  in  North 
Germany,  to  treat  the  execution-gage  as  a  sale-gage ;  that  is,  a 
judicial  sale  of  the  land  was  had,  and  the  creditor  was  satisfied 
out  of  the  purchase  price  realized.  The  excess,  if  any,  was  de- 
livered to  the  owner. 

Originally,  in  the  case  of  the  execution  as  of  the  usufruct-gage, 
the  land  pledged  was  alone  made  liable  to  the  creditor's  rights. 
He  therefore  ran  the  danger  of  its  destruction ;  and  this  was  ex- 
pressly provided  by  the  town  law  of  IMedebach,  for  example,  in 
case  of  a  conflagration.^  A  lialnlity  continuing  thereafter  could 
only  be  created  by  a  pledge  of  faith  ("  Treugelobnis  ")  on  the  part 
of  the  debtor.  An  innovation  pregnant  with  consequences 
occurred,  already  in  the  Middle  Ages,  when  many  legal  systems 
assured  to  the  creditor  a  statutory  right  to  go  against  the  debtor's 
»  "Stadtrecht  of  Medebach"  (11G5),  c.  13. 
383 


§  53]  THE    LAW    OF   THINGS  [BoOK  II 

other  property  in  case  he  could  not  fully  satisfy  his  claim  from  the 
land  pledged.  It  was  a  change  inconsistent  with  the  character  of 
pure  real-liability  originally  characteristic  of  the  Germanic  law 
of  pledge. 

On  the  other  hand,  when  pledge  riglrts  were  accorded  to  the 
creditor,  from  the  end  of  the  1100  s  onward,  in  the  whole  property 
of  the  debtor,  immovable  and  movable,  as  well  as  in  property  he 
might  acquire  in  the  future,  —  although  not  so  commonly  in  Ger- 
many as  in  Latin  countries,  — this  by  no  means  involved,  origi- 
nally, a  right  of  pledge  in  the  nature  of  a  real  right.  On  the  con- 
trary, such  transaction  merely  conveyed  to  the  creditor,  generally 
speaking,  a  right  to  distrain  the  property  in  case  of  the  debtor's 
default,  without  a  precedent  action,  and  either  by  way  of  self-help 
or  judicial  execution.  True,  there  might  be  developed  from 
them  an  actual  real  right  of  pledge ;  as  seems  to  have  been 
done  in  Liibeck,  for  example,  by  drawing  up  an  exact  inventory 
of  the  specific  property  of  the  debtor.  These  prepared  the  way, 
also,  for  the  spread  of  the  general  hypothec  of  the  Roman  law. 

The  execution  gage  had  a  certain  similarity  with  the  purchase- 
rent  ("  Rentenkauf  ",  supra,  pp.  370  et  seq.).  Of  course  there  existed 
between  the  two  transactions  important  economic  and  legal  dis- 
tinctions. The  latter  served  the  ends  of  permanent  invest- 
ments ;  the  execution-gage  was  intended  to  secure  a  temporary 
credit.  Xo  independent  personal  liability  existed  in  conjunction 
with  the  rent  charge  ("  Rentenlast  ").  On  the  other  hand,  there 
were  present  in  both  the  usufructuary  right  remaining  in  the 
owner  of  the  land  cliarged  with  the  rent  or  the  pledge  right,  and 
the  satisfaction  of  the  creditor  by  a  forced  sale.  Toward  the  end 
of  the  Middle  Ages,  however,  the  changes,  already  discussed,  in 
the  original  law  of  rent  led  to  an  assimilation  of  the  two  institutes 
in  very  many  respects.  Owing  to  the  fact  that  the  capitalistic 
rent  ("  Rente  "),  which  was  redeemable  by  the  debtor,  also  became 
subject  to  notice  of  redemption,  and  to  the  further  fact  that  in 
the  case  of  the  purchase-rent  the  supplementary  pledge  ("  I'iir- 
pfand  ")  subjected  the  landowner's  other  property  to  the  creditor's 
claim,  the  rent-charge  acquired  the  character  of  a  redeemable 
contractual  claim  ("  Forderung ")  secured  by  gage  of  land. 
Thenceforth,  land  subjected  to  a  rent-charge  was  also  known, 
itself,  as  a  sub-  ("  Unter-")  gage.  At  the  same  time,  it  became 
usual  to  unite  interest-bearing  loans  ("  zinsbare  Darlehen  "), 
which  had  theretofore  been  given  only  in  the  form  of  purchase-rents, 
with  the  gage  of  land ;  and  since  the  land  was  also  liable  for  the 

384 


Chap.   VII]  THE    LAW    OF   LAND  :     REAL    RIGHTS  [§  54 

individual  pajonents  of  interest,  the  consequence  of  this  was  that 
these  could  be  regarded,  like  the  capitalistic  rent  ("  Rente  "), 
as  payments  owing  out  of  the  land  itself.  In  this  manner  the 
line  between  the  two  institutes  became  ever  less  distinct. 
If  this  process,  thus  tending  to  their  union,  could  have  pro- 
ceeded uninterruptedly,  German  law  would  probably  have  reached 
independently  a  law  of  land  pledge  capable  of  satisfying  the 
needs  of  modern  times.  But  this  development  was  interrupted 
by  the  reception  of  the  Roman  law  of  pledge,  and  painful  labor 
v.'as  necessary  before  the  ideas  implicit  in  the  execution-gage  and 
the  annuity  again  acquired  authority,  and  displaced  the  perni- 
cious elements  of  alien  law. 

§  54.  The  Modern  Law  of  Land  Pledges.  (I)  The  Adoption  of 
the  Roman  Law  of  Pledge.  —  The  medieval  law  of  gage  ("  Grund- 
pfand  "),  in  the  form  which  it  finally  assumed,  especially  in  the 
execution-gage,  was  based  upon  sound  foundations  and  gave  per- 
fect security  to  creditors,  yet,  notwithstanding  this,  the  decidedly 
inferior  Roman  law  of  pledge  was  adopted  in  Germany,  —  a 
particularly  significant  example  of  the  uncritical  admiration  of 
everything  alien  to  which  Germans  are  prone. 

The  Roman  law  of  pledge  in  its  final  form,  which  alone  need 
be  considered  in  connection  with  the  Germanic  law,  recognized, 
substantially,  but  a  single  form  of  pledge :  the  hypothec.  This 
could  be  created  equally  on  movable  and  immovable  things,  by 
informal  agreement  or  testamentary  disposition.  Since  neither 
change  of  possession  nor  any  public  creative  act  whatever  was 
necessary,  no  safe  form  of  real  credit  was  possible :  nobody  could 
know  whether  his  right  of  pledge  had  been  rendered  valueless 
by  prior  hypothecs  or  made  invalid  by  an  imperfect  ownership 
in  the  hypothecator.  The  result  of  this  was  that  in  order  to  pro- 
cure credit  it  was  necessary  to  pledge  the  entire  estate,  present  . 
and  future ;  that  is,  to  give  a  "  general  "  h\T)othec  conveying  a 
right  of  pledge  in  each  specific  thing  owned  by  the  debtor.  In 
addition  to  this  there  existed  numerous  statutory  hypothecs  that 
were  tacitly  created  and  canceled,  most  of  which  were  in  char- 
acter "  general  "  hypothecs.  Among  various  rights  of  pledge 
the  oldest  had  priority,  in  theory ;  but  this  rule  did  not  apply  to 
the  numerous  forms  of  privileged  or  special  rights  of  pledge, 
such  as  that  enjoyed  by  a  wife  in  the  estate  of  her  husband  be- 
cause of  her  "  dos."  Moreover,  so-called  "  public  "  or  "  quasi- 
public  "  rights  of  pledge  created  by  the  observance  of  certain 
formalities  had  priority  over  all  others.     Finally,  the  hypothec 

385 


§  54]  THE    LAW    OF   THINGS  [BoOK   II 

was  wholly  accessorial  in  character ;  that  is,  it  was  intended  to 
secure  a  personal  claim,  upon  whose  existence  it  was  therefore 
dependent.  In  this  respect  it  was  quite  different  from  the  ideas 
of  the  Germanic  law.  The  enforcement  of  the  pledge,  —  namely, 
by  taking  possession  of  or  by  selling  it,  —  was  accomplished 
without  any  judicial  cooperation  whatever. 

To  be  sure,  these  rules  of  the  alien  law  were  unable  completely 
to  displace  the  native.  Many  of  the  latter  remained  in  authority. 
But,  for  a  time,  they  were  ill  adjusted  to  the  Roman  system  which 
had  become  the  common  law  of  Germany.  The  result  in  the  first 
period  after  the  Reception  was  an  extremely  confused  and  unsatis- 
factory condition  of  the  law,  which  is  reflected  in  the  statutes  of 
the  1500  s  and  the  1600  s. 

In  many  respects,  it  is  true,  there  was  merely  a  continuation 
of  a  movement  that  had  already  led  to  transformations  of  the  old 
Germanic  concepts  and  institutes  in  the  last  centuries  of  the 
Middle  Ages,  in  entire  independence  of  the  alien  law.  We  are 
here  concerned  primarily  with  the  following  points : 

In  general  the  pledge  without  transfer  of  possession  became 
most  common,  the  foreign  name  "  hypothec  "  becoming  usual  to 
designate  it.  This  institute,  however,  had  already  in  the  Middle 
Ages  become  the  most  common  form  of  pledge,  in  the  form  of  the 
execution-gage.  The  usufruct-gage,  that  is,  the  possessory-gage, 
held  its  place  for  a  time  beside  the  more  modern  form,  mainly 
because  men  could  support  it  by  an  appeal  to  the  related  institute 
of  the  alien  law,  the  antichresis ;  but  in  the  end  it  disappeared, 
save  for  slight  traces,  from  legal  life.  The  forfeiture-gage  was 
completely  abandoned.  Moreover,  the  Roman  prohibition  of  a 
"  lex  commissoria  "  made  its  defense  impossible  from  the  view- 
point of  modern  theory.  The  pure  form  of  real  liability  oc- 
curred only  rarely.  In  general  the  creditor  was  permitted  to  go 
against  the  other  property  of  the  debtor.  Various  rights  of  pledge 
in  the  same  thing  were  everywhere  permitted. 

In  other  respects,  however,  the  ado]:)tion  of  the  Roman  law  of 
pledge  constituted  a  direct  break  with  the  earlier  development. 

This  was  true,  in  the  first  place,  of  the  adoption  of  the  informal 
creation  of  a  pledge ;  although  in  many  places  (as  e.g.  in  Switzer- 
land) and  by  way  of  exception,  such  adoption  might  also  be  due 
to  a  desire  to  do  away  with  official  participation  in  such  transac- 
tions, as  a  burdensome  matter  and  one  offensive  to  feelings  of 
personal  independence.  However,  the  traditional  and  formal 
requisites,  —  namely,  a  legal  act  before  a  court  or  a  city  council 

386 


Chap.  VII]  THE   LAW   OF   LAND  :     REAL   RIGHTS  [§  54 

followed  by  registration  in  the  land-book,  or  some  other  judi- 
cial or  official  publication,  —  were  doubtless  only  rarely  wholly 
abandoned.  It  certainly  was  exceptional,  thenceforth,  to  treat 
them  as  the  sole  means  of  pledging  land ;  this  occurred  only 
in  a  few  systems  of  town  law  {e.g.  those  of  Munich,  Xordlingen, 
Liibeck,  Bremen)  that  clung  with  unusual  tenacity  to  the  old 
law.  Most  of  the  regional  systems  recognized,  indeed,  the  creation 
of  informal  pledges ;  but  they  also  recognized  the  continuance, 
beside  these,  of  the  types  of  the  Germanic  law,  and  even  attrib- 
uted to  these  a  preferential  effect  similar  to  that  of  the  Roman 
"  pignora  publica",  though  such  preference  was  recognized  only  in 
a  few  legal  systems  as  against  statutory  and  privileged  rights  of 
pledge. 

Further,  one  of  the  most  pernicious  transformations  ever  suf- 
fered by  the  Germanic  law  of  land  pledges  was  involved  in 
the  widespread  adoption  of  the  statutory  "  special  "  and  "  gen- 
eral "  rights  of  pledge,  totally  unknown  to  the  Germanic  law,  and 
the  "  preferential  "  pledge  rights  of  the  Roman  system.  Included 
in  these  were  the  special  statutory  hypothecs  of  landlords  in  the 
farming-stock  ("  invecta  et  illata  ")  of  the  hirer  ("  Mieter  ") ;  of 
a  lessor  in  the  fruits  of  the  leasehold ;  the  general  hypothec  of 
the  wife,  based  upon  her  "  dos  ",  in  the  property  of  her  husband, 
and  of  children  in  the  property  of  their  parents,  and  of  a  ward 
in  the  property  of  the  guardian ;  the  general  hypothec  of  the  fisc 
based  upon  its  claims  for  taxes,  to  which  was  added  a  similar 
hypothec  for  penal  fines,  and  likewise  one  for  "  piae  causae  " ; 
etc.  Of  course  all  this  necessitated  detailed  provisions  concerning 
the  rank  of  these  various  rights  of  pledge.  As  a  result  the  old 
Germanic  principles  of  publicity  and  "speciality"  ("Spezialitat  ") 
were  completely  abandoned.  Certainly  it  would  be  wrong  to 
suppose  that  these  unsound  conditions  of  the  law  of  pledge  are 
to  be  ascribed  exclusively  to  the  reception  of  the  Roman  law,  for 
we  have  seen  that  certain  tendencies  toward  approximation  to 
the  alien  system  had  begun  to  be  felt  before  the  Receptions ;  and 
the  history  of  the  modern  French  law  of  pledge  shows  us  that 
the  old  Germanic  concepts  of  liability  and  pledge,  when  logically 
applied,  are  themselves  capable  of  leading  to  "  the  same  close 
relation  between  personal  and  real  credit,  the  same  revival  of 
personal  and  property  liability,  and  the  same  general  hypothecs 
and  statutory  rights  of  pledge  "  as  existed  in  Germany  after  the 
Reception.^  And  if  a  strong  reaction  followed  in  Germany,  and 
1  Stutz  iu  Z.2  R.  G.,  XXVII  (1906),  428. 
387 


§  o4]  THE   LAW   OF  THINGS  [BoOK  II 

not  in  France,  the  cause  of  this  mav  possibly  have  been  that  the 
development  of  the  law  of  immovable  pledges  in  the  common 
law  so  exaggerated  conclusions  harmful  to  credit  as  to  make 
their  evil  tendency  more  manifest  than  where  an  uninterrupted 
development  fused  the  old  with  the  new  conditions. 

(II)  Return  to  the  Principles  of  the  Germanic  Law.  (1)  Modern 
Ilypothccary  Legislation.  —  In  consequence  of  the  dismember- 
ment and  confusion  of  the  law  of  pledge  that  was  caused  by  the 
Reception,  it  became  necessary  for  legislation  to  interfere,  espe- 
cially in  the  greater  cities.  In  this  process  Germanic  principles 
were  given  increasing  prominence,  although  quite  unconsciously 
IModern  hypothecary  legislation  began  in  the  1700  s.  Many 
earlier  statutes,  however,  had  already  introduced  reforms  in 
matters  of  detail ;  for  example,  the  Constitutions  of  Electoral 
Saxony,  of  1572.  Among  the  statutes  of  the  1700  s  those  of 
Prussia  are  particularly  notable :  the  ordinance  concerning  hy- 
pothecs and  bankruptcy  of  February  14,  1722,  —  which  was 
followed  by  the  important  supplementary  procedural  ordinance 
of  1724,  —  and  the  hypothecary  ordinance  of  December  20,  1783  ; 
which,  in  their  essential  content,  were  adopted  by  the  "  Allge- 
meines  Landrecht ",  thus  becoming  authoritative  for  the  later 
period.  The  legislation  of  the  ISOO  s  was  based  upon  the  founda- 
tions thus  laid.  So,  for  example,  in  Bavaria  (1822),  in  Wiirt- 
temberg  (1825),  and  in  Saxony  (since  1843) ;  and,  as  already 
mentioned,  in  a  particularly  independent  manner,  in  jNIecklen- 
burg,  in  its  revised  hypothecary  regulations  for  feudal  estates  of 
October  18,  1848  (supra,  p.  249),  and  the  revised  town  registry 
regulations  of  December  21,  1857  (supra,  pp.  223,  251),  which  have 
served  as  models  for  other  statutes.  The  flood  point  of  this 
legislation  is  marked  by  the  great  reformatory  Act  of  1872  in 
Prussia.  The  two  statutes  of  May  5th,  —  the  one  a  Land -Book 
ordinance,  and  the  other  an  act  regulating  the  acquisition  of 
ownership  (supra,  pp.  223,  253),  —  which  followed  the  ]\Iecklen- 
burg  statutes  at  many  points  and  were  eventually  introduced 
throughout  the  kingdom  save  in  Nassau  and  Helgoland,  were  not 
only  copied  in  succeeding  decades  by  a  number  of  other  German 
States  (among  others  by  Oldenburg  and  Brunswick)  but  also 
served  as  the  main  basis  for  the  regulation  of  the  law  of  pledge 
in  the  Civil  Code.  The  unitary  regulation  of  the  law  of  pledge 
in  the  Swiss  Civil  Code  embodies  principles  of  Germanic  law 
similar,  in  part,  to  those  of  the  German  Code,  and  in  part  ex- 
pressed in  peculiar  and  independent  forms. 

388 


Chap,  VII]  THE   LAW   OF  LAND  :     REAL   RIGHTS  [§  54 

(2)  The  Chief  Principles  of  the  Modern  Law  of  Pledge.  —  The 
re-Germanizing  of  the  law  of  pledge  thus  effected  was  not  at  all 
uniform  in  details,  but  it  was  nevertheless  dominated  by  a  few 
common  and  fundamental  tendencies,  which  appear  most  clearly 
in  the  following  points  : 

(A)  The  principle  of  publicity,  which  as  we  have  already 
stated  had  been  wholly  abandoned  by  only  very  few  legal  systems 
in  favor  of  the  Roman  law,  was  once  more  made  a  cardinal  prin- 
ciple. A  beginning  in  this  direction  was  made  by  the  procedural 
ordinance  of  Electoral  Saxony  of  1724,  but  it  was  first  completely 
realized  in  the  Prussian  "  Landrecht  "  and  in  the  Austrian  Code. 
The  modern  system  of  the  land-book  cannot  be  reconciled  with 
any  mode  of  creating  hypothecs  other  than  by  registration. 
Entry  in  the  land-book,  in  other  words  a  legal  and  formal  act 
in  the  sense  of  the  medieval  law,  was  thus  made  the  sole  means 
of  creating  a  hypothec  and  determining  its  rank ;  and  therefore 
statutory  and  passive  rights  of  pledge  necessarily  disappeared. 
Thenceforth  the  statute  conferred  merely  a  right  to  the  creation 
of  a  pledge  ("  Pfandrechtstitel  "),  by  virtue  of  which  the  person 
entitled  to  it  could  demand  registration  of  the  hypothec.  And 
further,  since  only  the  date  of  the  entry  was  henceforth  impor- 
tant in  fixing  the  priorities  of  hypothecs,  preferential  rights  of 
pledge  necessarily  disappeared.  The  Swiss  Civil  Code,  also,  has 
given  effect  to  the  principle  of  publicity ;  but  not  without  excep- 
tions, for  it  still  recognizes  statutory  pledges.  Indeed,  it  permits 
the  cantons  to  create  such  statutory  pledge  rights,  without  entry 
in  the  land-book,  as  security  for  claims  under  the  public  law,  — 
such  for  example  as  for  tax  claims,  or  for  sewage  improvements ; 
and  further,  it  even  recognizes  statutory  pledge  rights  for  costs  in- 
curred in  precautionary  measures  taken  by  a  pledgee  by  way 
of  self-help  in  order  to  preserve  the  pledge  from  damage ;  and 
also  for  outlays  by  the  creditor  for  the  preservation  of  the  pledge. 
In  other  cases  even  the  Swiss  Code  merely  creates  a  right  to  regis- 
try in  the  land-book. 

(B)  The  principle  of  "  speciality  "("  Spezialitat  ")  was 
resurrected  along  with  the  principle  of  publicity.  Rights  of 
pledge  in  lands  were  recognized  only  in  definite  pieces  of  land,  — 
the  general  hypothec  being  discarded.  It  was  a  further  conse- 
quence of  this  principle  of  "  speciality  "  that  every  pledge  right 
charged  the  land  with  an  obligation  to  pay  a  definite  sum  of  money ; 
although,  of  course,  the  rules  as  to  the  manner  by  which  the  charge 
should  be  paid  might  be  various,  in  consequence  of  the  different 

389 


§  54]  THE    LAW    OF   THINGS  [BoOK    II 

varieties  of  pledge  rights.     The  land-charge  ("  Gnindschuld  "), 

—  to  mention  only  the  final  rule  adoj)ted  by  the  new  Civil  Code, 

—  must  always  be  for  a  fixed  sum  of  money ;  the  same  is  generally 
true  of  the  hypothec,  but  not  necessarily  so  (not  in  the  maximal- 
hypothec,  "  IIochsthyi)othek  ")  ;  the  annuity-charge  ("  llenten- 
schuld  ")  involves  a  fixed  money  rent.  In  essentials  the  Swiss 
Ci\il  Code  embodies  the  same  j)rinciples ;  it  likewise  recognizes 
"  maximal  "  hypothecs. 

(C)  The  principle  of  legality  ("  LegalitJit  ")  was  developed 
by  modern  legislation  from  the  element  of  official  cooperation  re- 
quired l)y  the  medieval  law  in  the  creation  of  pledges.  According 
to  the  older  theory  (which  is  expressed  for  example  in  the  Prus- 
sian Hypothecary  Regulations  of  1783  and  also  in  a  scries  of  stat- 
utes of  the  first  half  of  the  1800  s)  this  principle  signified  at  least 
a  judicial  examination  of  the  validity  of  the  juristic  act  upon 
which  the  pledge  was  based,  although  no  longer  an  examination 
of  the  sufficiency  of  the  pledge,  —  so-called  "  substantive  " 
("  materielle  ")  legality.  On  the  other  hand,  the  more  modern 
statutes,  particularly  those  of  ]Mecklenburg  and  the  Prussian 
statutes  of  1872,  limited  such  judicial  examinations  to  the  deter- 
mination of  the  outward  and  formal  correctness  of  the  declaration 
of  the  parties'  will,  —  so-called  "  formal  "  legality.  This  last 
has  been  adopted  by  the  law  of  the  present  day. 

(D)  The  principle  of  in'variable  priorities  ("  feste  Pfand- 
stelle  ").  It  followed  from  the  form  of  the  Koman  common  law 
of  pledge,  which  was  copied  in  this  respect  by  the  French  law, 
that  when  several  rights  of  pledge  exist  in  one  piece  of  land  and 
one  of  them  drops  out,  the  junior  pledges,  that  is  those  later 
created,  each  advance  ipso  facto  by  one  degree ;  exactly  as  when 
one  of  several  books  lying  upon  one  another  is  withdrawn,  and 
the  upper  ones  fall  into  different  places  by  force  of  gravity.^ 
The  owner  of  the  land  is  powerless  to  affect  the  matter.  If  he 
wishes  to  create  a  new  pledge,  he  can  assign  to  it  only  the  lowest 
rank,  after  all  the  others.  It  follows  that  every  right  of  pledge 
covers  the  entire  value  of  the  land. 

On  the  other  hand,  Germanic  law  proceeded  from  the  idea  that 
every  pledge  right  covers  a  quite  definite  and  j)ermancntly  limited 
part  of  the  land's  total  value ;  and  it  was  possible  to  apply  this 
idea  with  entire  consistency  in  a  system  of  pledge  rights  based 
upon  land  registry.  Each  pledge  right  acquires,  by  entry  in 
the  land-book,  an  exactly  defined  position ;  a  fixed  rank  deter- 
'  Tuor,  "Das  neue  liecht",  478. 
390 


Chap.  \1I]  the  law  of  land  :    real  rights  [§  54 

mined  by  the  date  of  registry.  Xo  change  of  priority  can  take 
place ;  if  a  prior  pledge  right  is  cancelled  the  result  is  a  vacant 
place,  "  an  empt}'  compartment  in  which  the  owner  is  free  to  put 
whatever  he  maj^  later  desire."  This  system  of  the  "vacant 
rank  "  ("  leere  Pfandstelle  ")  of  the  Germanic  law  has  become  an 
essential  characteristic  of  the  pledge  rights  of  the  present  law, 
along  with  the  land-book  system.  The  German  and  the  Swiss 
Code  have  alike  given  it  effect.  With  this  change  it  became  logi- 
cally possible  to  recognize  the  proprietary  hypothec,  which  has 
also  been  adopted  by  both  Codes. 

(E)  It  was  not  alone  the  formal  requisites  for  the  creation  and 
continuance  of  rights  of  pledge  in  land  that  received,  in  conse- 
quence of  the  introduction  of  the  principles  referred  to,  a  form 
which  gives  a  Germanic  character  to  the  modern  hypothecary 
law ;  the  same  was  true  also  of  its  content.     The  principle  of  the 

PRIMARY    OR    INDEPENDENT    CHARACTER     ("  SclbstJindigkeit  ")     of 

pledge  rights  was  again  recognized.  It  is  true  that  in  Germany, 
as  elsewhere,  the  hypothec  was  at  first  merely  a  right  securing 
a  personal  debt  for  which  the  debtor  was  only  personally  liable ; 
this  was  due  to  the  influence  of  the  Roman  law.  The  result  was 
the  disappearance  from  the  pledge  law  of  the  pure  principle  of 
real  liability  that  had  entered  the  law  in  the  execution-gage. 
This  change  was  also  connected  with  the  fact  that  the  separation 
of  the  concepts  of  legal  duty  and  liability  ("  Schuld  "  and 
"  Haftung  ",  —  infra,  §  70),  peculiar  to  the  Germanic  law,  was 
abandoned.  Now,  as  Gierke  has  made  clear  in  his  fundamental 
discussion  of  the  Germanic  law  of  pledge,  there  was  associated 
with  the  hypothec  the  idea  of  a  "  real  "  obligation  derived  from 
the  law  of  the  purchase-rent  ("  Rentenkauf  ") :  "  this  idea  was 
inherited  by  the  hypothec  from  the  purchase-rent  when  the 
latter  was  displaced  by  the  hypothecary  loan  for  interest."  ^ 
In  other  words,  land  that  is  charged  with  a  pledge  right  is  liable 
for  a  debt  that  is  inseparably  united  with  the  ownership  of  such 
land,  exactly  in  the  same  manner  as  the  land-charge  produced  a 
real  debt  that  was  imposed  upon  each  successive  owner  of  the 
land  (supra,  p.  362).  From  this  real  debt  there  resulted  a 
credit  right  in  favor  of  the  pledgee  which  had  every  appear- 
ance of  a  right  in  the  land  itself,  and  for  that  reason  existed 
as  against  any  temj)orary  owner.  To  be  sure,  this  idea,  and  with 
it  the  improvement  of  the  hypothecary  law  accomplished  by  its 
fusion  with  the  law  of  real  charges,  has  acquired  complete  accept- 
1  Gierke,  "Privatrecht  ",  II,  834. 
391 


§  51]  THE    LAW    OF   THINGS  [Book   II 

ance  only  in  the  most  recent  law.^  But  the  tendency  in  this 
direction,  and  away  from  the  rule  of  the  Roman  law,  nevertheless 
appeared  in  the  earlier  hypothecary  statutes. 

In  the  first  place,  thou<j;h  the  hypothec  was  generally  still 
treated  as  a  purely  supplementary  right,  some  of  them,  as  for 
example  the  Prussian  "  Landrecht  "  and  the  Bavarian  Hypothe- 
cary Act,  separated  it  from  the  personal  claim  to  the  extent  of 
forbidding,  as  against  bona  fide  assignees  ("  Zessionjire  "),  pleas 
that  were  allowed  to  the  owner  against  the  first  pledgee  (the 
"  Zedenten  ")  because  of  the  obligational  relation.  This  refusal 
was  based  upon  the  principle  of  the  "  public-faith  "  of  the  land- 
book.  In  this  case  the  real  right,  which  could  be  acquired  only 
by  a  third  person  who  purchased  the  hypothec  in  good  faith, 
was  separated  in  the  hand  of  such  third  person  from  the  personal 
relation  of  debtor  and  creditor,  to  which  he  was  not  a  party. 

This  tendency  was  further  strengthened  by  the  introduction, 
above  referred  to,  of  the  proprietary  hypothec,  which  was  first 
recognized,  —  in  the  "  Rescript  "  of  August  11,  1802  (as  "  supple- 
ment, §  52  "  of  the  Prussian  Landrecht)  —  in  those  cases  where 
hypothec  and  ownership  became  united  by  inheritance  or  as  the 
result  of  a  juristic  act.  Still  later  there  was  also  recognized 
a  hypothec  which  when  paid  by  the  owner  was  not  by  such  satis- 
faction destroyed,  but  on  the  contrary  passed  to  the  owner  him- 
self; and  indeed,  in  the  end,  even  though  the  personal  relation 
of  debtor  and  creditor  was  extinguished  by  such  satisfaction. 
The  creation  of  a  pledge  right  in  favor  of  the  owner  from  the  begin- 
ning was  first  made  possible  in  the  ^Mecklenburg  law.  This  could 
be  done  there  because  the  ^lecklenburg  law  freed  the  pledge  right 
at  the  same  time  from  the  subsidiary  character  attributed  to  it 
in  the  common  law  theory,  declaring  the  hypothec  to  be  an  inde- 
pendent real  charge  upon  the  land,  and  applying  to  it  as  such  the 
Germanic  principle  of  pure  real-liability.  Its  complete  separa- 
tion of  the  hypothec  from  the  personal  debt,  —  which,  although 
it  co-exists  with  the  pledge  right  (which  certainly  presents  no 
theoretical  difficulty)  does  not  in  the  least  affect  the  latter,  — 
was  manifested  in  the  fact  that  the  causa  ("  Schuldgrund  "), 
as  for  example  a  loan,  was  not  entered  in  the  land-book  along  with 
the  amount  ("  Posten  ")  of  the  hypothec.  The  consequence  of 
this  was,  although  the  law-makers  themselves  were  probably 
hardly  conscious  of  this  result  of  their  acts,  that  the  old  Germanic 
law  of  pledge  was  again  revealed  in  all  its  purity :  the  land  alone 
1  Slulz,  art.  just  cited. 
392 


Chap.   VII]  THE    LAW    OF   LAND  :     REAL    RIGHTS  [§  54 

is  liable  to  the  creditor ;  only  from  its  products  can  he  seek  satis- 
faction of  his  debt. 

The  example  set  by  ^Mecklenburg  was  followed  in  the  Prussian 
statutes  of  1872,  although  not  as  the  government  originally  in- 
tended. Instead  of  conceding  an  independent  character  to 
all  pledge  rights  whatever,  the  merely  relatively  independent 
hypothec  theretofore  existing  in  the  Prussian  law  was  retained, 
the  ]\lecklenburg  hypothec  being  introduced  beside  it,  and  the 
name  "  land-debt  "  ("  Grundschuld  ")  given  to  the  new  insti- 
tute to  distinguish  it  from  the  older  type.  The  expectation 
that  this  "  Grundschuld  "  would  displace  the  earlier  hypothec 
in  legal  practice  was,  however,  not  realized ;  the  hypothec 
has  remained  the  far  more  common  form  of  land  pledge. 

The  Civil  Code  has  also  adopted  both  forms,  the  hypothec  — 
in  theory  an  accessory  right,  in  fact  a  very  independent  one,  and, 
like  the  earlier  Prussian  hypothec,  entirely  separated  under  some 
circumstances  from  the  obligational  claim  —  and  the  "land-debt", 
which  both  in  theory  and  in  fact  is  entirely  independent  thereof. 
A  sub-variety  of  the  land-debt  under  the  system  of  the  present 
Civil  Code,  is  the  limited  annuity-charge  ("  Rentenschuld  "), 
which  is  distinguished  from  the  hypothec  and  from  other  forms 
of  land-debts  by  the  fact  that  its  basis  is  not  a  debt  for  a 
loan  of  capital,  whether  interest  or  non-interest  bearing,  but 
a  recurrent  money  rent ;  which,  however,  can  be  registered  only 
together  with  a  fixed  redemption  sum.  There  has  been  again 
revived  in  this  the  old  purchase-rent  ("  gekaufte  Rente"),  which 
had  also  finally  become  redeemable  (supra,  p.  373). 

(F)  Following  the  Reception  the  forfeiture-gage  disappeared. 
But  the  regional  legal  systems,  not  content  with  prohibiting  the 
forfeiture  clause  in  conformity  with  the  Roman  law,  clung  to  the 
principle  that  the  creditor  was  entitled  to  a  sale  onh'  when  made 
with  the  cooperation  of  the  court ;  a  principle  which  was  in  har- 
mony with  the  native  law  but  inconsistent  with  the  Roman. 
Under  modern  legislation  judicial  execution  has  become  the 
exclusive  means  by  which  the  creditor  can  secure  satisfaction 
of  his  claim. 

(G)  When  pledge  rights  had  been  made  independent  there 
resulted  the  further  possibility  of  making  them  assignable,  "  thus 
*  mobilizing  '  the  land  in  the  form  of  value-shares  of  negotiable 
CHARACTER."  ^  This  also  is  a  result  of  the  pledge-concept  of  the 
Germanic  law.     Already  in  the  case  of  rights  to  rents  ("  Renten- 

1  Gierke,  op.  cit.,  835. 
393 


§  54]  THE    LAW    OF   THINGS  [BoGK   II 

recht  ")  documents  were  often  executed  which,  as  already  men- 
tioned {supra,  p.  372),  were  treated  as  commercial  paper;  their 
delivery,  when  associated  with  an  informal  contract,  sufficed  for 
the  alienation  or  the  pledjjje  of  the  ri.c;ht  to  the  rent.  In  this 
way,  for  example,  the  perpetual-rents  ("  Ewiggelder  ")  of  Munich 
were  created  from  the  1300  s  onward  ;  namely  by  public  deed 
("  Verbriefung  ")  and  gradually  even  by  private  deed,  or  —  if 
the  parties  so  chose,  which  was  relatively  rare  —  by  entry  in 
the  land-book.  This  was  the  starting  point  of  the  documenta- 
tion of  pledge  rights  that  has  been  developed  in  the  modern  law. 
Along  with  registry  in  the  land-book  it  became  usual  to  prepare 
and  deliver  a  hypothec  deed  {"  Hypothekenbrief ").  But  new 
legal  effect  was  now  attributed  to  this  by  legislation.  While  it 
had  merely  the  significance,  according  to  some  statutes,  of  a  public 
evidential  document,  the  earlier  Prussian  legislation  attributed 
to  it  the  character  of  a  "  legitimizing  "  ("  Legitimations-")  docu- 
ment, possession  of  which  sufficed  as  autliority  to  assign  the 
hypothec  and  to  enforce  it.  The  statutes  of  1872  left  this 
quality  to  the  hypothec  deed,  but,  on  the  other  hand,  raised  the 
land-dcht  deed  ("  Grundschuldbrief ")  to  the  rank  of  perfect 
commercial  paper,  whose  manual  delivery  is  indispensable  for  the 
transfer  of  the  charge.  The  new  Civil  Code  treats  the  normal 
deeds  which  it  prescribes  for  hypothec  and  land-charge  as  commer- 
cial paper,  but  it  recognizes  securiti/  ("  Sicherungs-')  hypothecs, 
unlike  commercial  ("  Verkehrs-')  hypothecs,  only  when  registered, 
—  that  is,  as  "book"  {"  Buch-")  hypothecs;  and  permits  land- 
charges  and  annuity-charges  to  be  made  out  to  bearer. 

Like  the  German  Code,  the  Swiss  Civil  Code  recognizes  three 
different  kinds  of  pledge  rights  in  land  :  the  "  Grundpfandver- 
schreibung",  the  "  Gult  "  and  the  "  Schuldbrief."  But  these 
correspond  only  in  part  to  those  of  the  German  Code.  The 
"  Grundpfandverschreibung  ",  or  the  security-pledge  ("  Siche- 
rungspfandrecht  "),  is  like  the  German  security  hypothec  de- 
cidedly accessory  in  character ;  it  does  not  represent  an  independ- 
ent land-value,  and  is  not  intended  to  be  trafficable,  nor  is  it 
embodied  in  commercial  paper.  The  "  Giilt  "  corresponds  to 
the  German  land-debt  ("  Grundsclnild  ")  ;  like  this,  it  is  "ab- 
stract "  in  nature,  but,  unlike  the  German  Code,  the  Swiss  Code 
attributes  to  it  under  all  conditions  the  quality  of  a  land-charge, 
and  has  attempted  by  various  provisions  to  strengthen  its  char- 
acter as  a  real  security.  Finally,  the  "  Schuldbrief  ",  whirli 
stands  midway  between  the  security-pledge  and  the  negotiable 

394 


Chap.  VII]  THE   LAW   OF   LAND  :     REAL   RIGHTS  [§  55 

land-debt  ("  Giilt  "),  differs  in  most  of  its  qualities  from  the 
corresponding  form  of  pledge  of  the  German  Code,  namely,  the 
commercial-hypothec  ("  Verkehrshypothek ").  It  includes  a 
personal  liability  on  the  part  of  the  debtor  and  is  embodied  in 
commercial  paper,  but,  like  the  "  Giilt  ",  has  the  general  char- 
acter of  an  "  abstract  "  obligational  claim. 


Topic  5.,    Preemption  Rights   (*'  Naherrechte  ")  ^ 

§  55.  Preemption  Rights  in  general.  (I)  Conception.  — 
By  the  term  "  Xiiherrecht  "  (also  known  as  "  Zug-",  "  Losungs-", 
and  "  Retraktrecht  "  ;  right  of  retractive  purchase,  of  redemption) 
there  is  understood  such  a  real  right  existing  in  the  land  of  another 
as  empowers  the  holder  of  the  right  ("  Naherberechtigte ", 
"  Nahergelter  ",  "  Retrahent  ")  to  demand  that  the  land  be  trans- 
ferred to  him  when  it  has  been  sold  by  the  owner  to  a  third  per- 
son ;  subject,  always,  to  the  condition  tliat  the  person  entitled 
to  such  retractive  right  of  purchase  shall  make  good  the  purchase 
price  to  the  owner,  —  in  other  words  be  substituted  in  the  pur- 
chase contract  for  the  third  person  purchasing  the  land. 

(II)  History.^  —  The  right  of  preemption,  in  particular  the 
oldest  and  most  important  of  statutory  "  Naherrechte ",  the 
next  heir's  right  of  retractive  purchase  ("  Zugrecht  "),  is  in  origin 
"  a  weakened  remnant  of,  or  a  derivative  from,  the  heir's  right 
in  expectancy  under  Germanic  law  ",^  of  which  we  have  already 
spoken  as  one  of  the  restrictions  upon  ownership  based  upon  a 
one-time  existence  of  collective  family  property  (supra,  p.  304 
et  seq.).  As  we  have  there  stated,  the  heir's  right  in  expectancy, 
in  its  more  modern  form  of  a  formal  right  of  co-alienation,  became 
a  real  right  in  expectancy  in  the  land  of  another ;  a  right  which 
became  independent  upon  a  sale  of  the  land  by  the  owner,  thereby 
securing  to  his  relatives  entitled  to  it  a  real  claim,  effective  against 
any  third  person,  for  the  delivery  of  the  land.  Thanks  to  this 
right  in  expectancy  the  heirs,  by  refusing  consent,  were  able  to 
prevent  any  gift  ("  Vergabung  "),  though  wholly  gratuitous, 
as  well  as  any  sale  of  the  land  outside  of  the  family ;  and  also,  by 

1  Lahand,  "Die  reehtlicho  Natur  dcs  Retracts  und  der  Expropriation", 
in  Arch,  civil.  Praxis,  Hi  (1869),  151  d  scq. 

2  The  view  adopted  in  the  text,  which  is  the  prevailing  one,  is  disputed 
by  Ficker,  who  denies  any  close  relationship  whatever  between  rights  in 
expectancy  ("Wartrecht")  and  rights  of  preemption  ("Naherrecht") 
and  attributes  the  greater  antiquitj'  to  the  latter.     Cf.  p.  305,  supra. 

3  Gierke,  " P*rivatrecht  ",  II,  785. 

395 


§  55]  THE    LAW    OF   THINGS  [BoOK   II 

bringing  a  real  action  based  upon  their  formal  right  of  co-ahena- 
tion,  could  rescind  a  sale  already  made.  But  the  harshness  of  these 
rights  as  against  the  landowner  early  led  to  the  result  that  this 
requirement  of  the  heirs'  consent  was  disregarded,  —  at  least  in 
cases  of  necessity  when  only  a  sale  of  his  estate  could  save  him,  — 
and  a  mere  prior  or  preferential  ("  Naher-")  right  accorded  them  ; 
that  is  to  say,  a  right  to  acquire  the  land  first  themselves,  by  ])ur- 
chase,  thus  securing  the  owner  against  any  claims  for  damages 
on  the  part  of  third  persons.  For  some  time  the  heirs'  rights  of 
co-alienation  and  retractive  purchase  existed  side  by  side,  as  is 
shown  for  example  by  the  manorial  law  of  the  bishopric  of  Worms.^ 
But  inasmuch  as  "  the  interest  of  the  heirs  in  the  preservation  of 
the  family  estate  was  also  completely  protected  "  ^  by  the  right 
of  preemption  ("  Niiherrecht  "),  and  at  the  same  time  proper 
regard  shown  for  the  interest  of  the  owner,  preemption  rights 
more  and  more  displaced  the  old  right  of  co-alienation,  even 
aside  from  the  exceptional  cases  of  necessity.  Alike  in  the  Terri- 
torial, the  town,  and  the  manorial  law,  the  principle  spread  that 
whoever  wished  to  sell  his  land  must  offer  it  first  to  his  heirs. 
And,  in  analogy  to  the  prior  rights  of  heirs,  although  not  here 
derived  from  an  original  right  of  co-alienation,  a  corresponding 
independent  right  was  recognized,  already  in  the  ^Middle  Ages, 
in  favor  of  part-owners  ("  Geteilen  "),  fellow-occupants  of  an 
estate  ("  Hofgenossen "),  the  members  of  a  commune,  of  a 
manor,  etc.  {.nipra,  §  5G).  The  right  to  retract  a  feudal  feoffment 
("  retractus  feudalis  "),  developed  in  the  Lombard  law,  was  also 
adopted  by  modern  feudal  statutes,  as  for  example  in  the 
Prussian  "  Landrecht  "  (supra,  p.  344) ;  it  was  possessed  not 
only  by  the  original  lord  but  also  by  the  successive  holders  of 
the  fief. 

These  rights  of  preemption  which  thus  appeared  in  the  course 
of  the  INIiddle  Ages  were  by  no  means  swept  away  by  the  Recep- 
tion. On  the  contrary  they  were  developed  with  special  prefer- 
ence, both  in  theory  and  in  legislation,  in  the  period  following. 
The  doctrine  of  retractive  rights  ("  Retraktrecht  ")  was  adopted 
in  Germany  in  the  form  in  which  it  had  been  developed  by  medieval 
jurisprudence,  and  with  the  aid  of  this  the  attempt  was  made  to 
give  to  the  institute  as  nearly  universal  authority  as  possible. 

•  In  this  manorial  law  (of  1023-1025)  the  Koneral  retractive  right  of 
the  heir  ("  Erlieinspruchsrecht")  is  referred  to  in  §  G.  Cf.  Heusler,  "In- 
stitutionen",  II,  00. 

^  Heusler,  op.  cit. 

396 


Ch.VP.  VII]  THE    LAW    OF   LAND  :     REAL    RIGHTS  [§  55 

Doubtless  with  some  exaggeration,  men  claimed  for  it  a  basis  in 
Holy  Writ,  in  the  Canon  law,  and  in  the  secular  law. 

Although  only  the  feudal  right  of  retraction  actually  attained 
authority  as  common  law,  other  rights  of  preemption  received  all 
the  more  commonly,  for  that  reason,  an  exliaustive  regulation 
in  regional  legislation.  This  added  to  the  traditional  forms  a 
series  of  new  ones,  such  as  the  retractive  right  of  the  imperial 
knightage  and  the  rural  ("  landsassiger  ")  nobility,  the  so-called 
"  Territorial  "  redemption  ("  Landlosung  "),  retraction  of  con- 
veyances in  mortmain  and  to  Jews,  etc.  Special  rights  of  retrac- 
tive purchase  were  later  recognized  even  as  to  chattels ;  for 
example,  in  favor  of  co-shipowners  ("  Mitreeder  ")  in  the  sale  of 
interests  in  a  vessel  ("  Schiffsparten  "). 

The  reason  for  the  striking  favor  thus  shown  to  preemption 
rights  in  the  legislation  of  modern  times  we  must  doubtless  find, 
with  Huber,!  in  the  fact  "  that  the  solidary  character  of  landed 
estates  first  began  to  weaken,  under  the  influence  of  new  economic 
ideas,  at  the  end  of  the  Middle  Ages,  and  that  statutes  thereafter 
endeavored  to  maintain  intact,  or  so  far  as  possible  defend,  that 
which  tradition  and  custom  no  longer  sufficiently  protected." 
In  the  end,  however,  the  artificial  element  involved  in  such  legis- 
lation, and  its  inconsistency  with  the  altered  economic  ideas  of 
modern  times,  were  bound  to  make  themselves  felt.  From  the 
1700  s  onward  men  came  to  regard  such  prior  rights  as  harmful 
fetters  upon  commerce,  and  began  to  combat  them  in  principle, 
and  either  wholly  abolish  or  at  least  considerably  restrict  them 
in  practice.  Especially  in  the  1800  s  most  of  the  old  retractive 
rights  ("  Retraktrechte  ")  were  abandoned,  after  the  legislation  of 
the  French  Revolution  had  led  the  way  in  their  complete  suppres- 
sion. \Miereas  the  Prussian  "  Landrecht  ",  for  example,  had  still 
recognized  the  retractive  rights  of  co-shipowners  ("Schiffsreeder  "), 
of  feudal  lords,  of  agnates,  of  co-feoffees,  and  of  tithe  payers,  as 
well  in  certain  provinces  as  the  preemption  rights  of  part-own- 
ers ("  Gespilderechte  ")  and  of  neighbors,  and  the  heir's  right  of 
redemption  by  purchase  ("  Erblosung  "), — the  Prussian  statute 
of  March  2,  1850,  abolished  without  compensation  almost  all 
retractive  rights  whatever.  Only  the  preemption  ("  Vorkaufs-") 
rights  of  community  owners  and  the  recently  introduced  preemp- 
tion right  of  one  dispossessed  by  expropriation  ("Enteignete  " ; 
see  p.  256)  were  retained  ;  to  these  there  was  later  added  the 
similar  right  of  co-heirs  in  estates  subject  to  the  rule  of  single 
1  "Schw.  Privatrecht",  IV,  719  ct  seq. 
397 


§55]  THE    LAW    OF   THINGS  [BoOK   II 

heirship.  In  otlier  States,  as  for  example  Hesse,  preemption 
rights  were  abohshed  without  exception.  The  new  Civil  Code 
has  adopted  toward  them  the  same  unfriendly  attitude,  l^ider 
the  imperial  law  there  exists,  as  a  statutory  preemption  right, 
solely  the  preferential  purchase  right  of  co-heirs,  which  is  also 
recognized  by  the  Code  Civil ;  others  can  be  created  only  within 
the  field  reserved  to  the  State  law.  Among  preemption  rights 
based  upon  contract  must  be  counted  those  preemption  rights 
that  are  registered  in  the  land-book  and  thereby  acquire  real 
effects. 

(Ill)  Legal  Character  and  Enforcement.  —  (1)  Whereas  the 
older  German  juris])rudence,  following  the  Italian  theory,  conceived 
of  preemption  rights,  in  general,  as  obligational  rights  of  a  special 
kind, — a  view  which  has  been  shared  in  late  days  by  Gerber, 
among  others,  —  the  view  has  lately  triumphed  that  they  are 
real  rights;  and  this  view  is  certainly  correct.  In  Gierke's  phrase, 
a  preemption  right  is  "  a  right  in  expectancy  in  a  thing."  ^  In 
case  the  owner  sells  to  a  third  person,  then  the  real  right  of  the 
person  preferentially  entitled,  which  until  then  constitutes  a 
restriction  upon  the  ownership,  becomes  fully  effective.  Such  a 
sale,  however,  though  an  indispensable  precondition  to  the  enforce- 
ment of  the  retractive  right,  is  not  such  to  its  creation.  The 
sale  is  "  not  the  fact  which  creates  but  only  the  fact  which  justi- 
fies redemption."  ^  The  retractor  does  not,  as  Laband  endeavored 
to  show,  bring  his  action  for  judicial  recognition  and  definition  of 
his  right  to  acquire  the  ownership  of  the  land  by  unilateral  act, 
but  brings  an  action  "  for  the  recognition  of  his  own  ownership, 
now  become  clear."  ^  The  retractor  becomes  the  owner  so  soon 
as  the  preconditions  requisite  to  the  effectiveness  of  his  right  have 
been  realized, 

(2)  These  preconditions  are  of  two  kinds  :  first,  a  sale  must  have 
taken  place  by  the  owner,  —  and  only  a  sale,  for  a  gratuitous 
gift  ("  Schenkung  "),  or  exchange,  or  a  so-called  sale  for  affection 
would  not  suffice ;  and  secondly,  the  retractor  must  perform  all 
obligations  which  the  first  seller  has  assumed  or  performed.  From 
this  it  follows  that  the  preferential  right  of  purchase- ordinarily 
takes  the  form  of  a  right  of  prior  purchase  ("  Vorkaufsrecht  "), 
and  in  the  absence  of  si)ecific  provision  includes  such  a  right ; 
just  as  it  first  appeared,  historically,  in  the  form  of  such  a  right. 

»  "Privatrecht",  II,  771. 

»//.  0.  Lehmnnn  in  Stnhbr,  II.  1  (.3d  ed.),  484. 

'  Heusler,  "Institutionen  ",  II,  03. 

398 


Chap.   VII]  THE    LAW    OF   LAND  :     REAL    RIGHTS  [§  56 

But  it  is  distinguished  from  an  ordinary  and  purely  contractual 
option  of  prior  purchase  by  the  fact  that  the  latter  secures  merely 
a  claim  for  damages  against  the  alienating  owner,  whereas  the 
true  preemption  right  ("  Xaherrecht  "),  as  we  have  seen,  is  effect- 
ive, thanks  to  its  real  character,  against  each  acquirer,  and  re- 
quires the  delivery  of  the  thing  alienated  subject  to  compensation 
for  the  purchase  price. 

(3)  The  enforcement  of  the  preemption  right  is  ordinarily 
limited  to  a  definite  period,  running  from  the  moment  that  knowl- 
edge is  acquired  of  the  sale  or  conveyance  of  the  property.  In 
the  Middle  Ages  it  was  a  year  and  a  day;  in  the  modern  law 
it  was  commonly  two  months,  as  it  is  under  the  Civil  Code. 
Renunciation  may  effect  the  termination  of  the  preemption  right 
exactly  as  does  the  running  of  a  prescriptive  period. 

(4)  When,  as  was  easily  possible,  several  ijersons  were  entitled 
to  preemption  rights,  either  as  members  of  a  class  (as  for  example 
several  heirs)  or  as  members  of  different  classes  (as  for  example 
kinsmen  and  neighbors),  complicated  relations  might  result. 
The  medieval  sources  were  unable  to  solve  the  difficulties  here- 
from resulting  except  in  an  imperfect  manner.  Not  infrequently 
decision  by  lot  was  resorted  to  as  the  final  means  of  judg- 
ment. In  the  law  of  the  present  day  these  questions  play  hardly 
any  role  at  all,  since,  as  already  stated,  only  the  single  group  of 
co-heirs  is  still  recognized  as  possessing  preferential  rights,  and 
their  enforcement  is  left  under  the  general  principles  of  the 
inheritance  law. 

§  5C).  Individual  Preemption  Rights.  (I)  Statutory  Preemp- 
tion Rights.  —  (1)  The  Heir's  Preferential  Right  of  Purchase 
("  Erblosung  ",  "  Beschiittungsrecht  ",  "  retractus  gentilicius  ", 
"  retractus  consanguinitatis  ",  "  retrait  lignager  ").  This  was 
the  oldest,  and  formerly  by  far  the  most  important,  statutory 
preemption  right.  Of  its  creation  we  have  already  spoken 
(svpra,  p.  395).  It  existed  in  favor  of  the  nearest  statutory  heir 
at  the  moment  of  alienation  ;  in  this  connection  the  circle  of  those 
entitled  to  the  right  was  drawn  narrower  or  wider  under  different 
circumstances.  The  order  of  priority  was  determined  by  the 
degree  of  blood  relationship ;  frequently  only  the  descendants  of 
the  first  acquirer  were  entitled.  Among  several  relatives  of  the 
same  degree,  lot  or  prior  claim  ("  Priivention  ")  was  frequently 
made  decisive,  or  an  equal  partition  was  made.  At  the  present 
dav  such  preferential  rights  of  purchase  in  the  heir  exist  only  within 
the  field  reserved  to  State  law,  and  in  the  case  of  entailed  estates 

399 


§  56]  THE    LAW    OF   THINGS  [BoOK   II 

(in  Wiirttemburg,  Bremen)  and  estates  subject  to  single  heirship 
(in  Prussia  and  in  ^Mecklenburg). 

(2)  The  Preemption  Rigid  of  Mark-associates  ("  ^Nlarklosung  ", 
"  retractus  ex  iure  incolonatus  ").  This  existed  in  case  of  ahena- 
tion  to  a  non-member  of  land  lying  within  the  mark.  There  is 
already  evidence  of  this  in  the  provision  of  Title  45  of  the  "  Lex 
Salica",  which  permits  any  markman  to  prevent  the  alienation  of 
a  curtilage  {"  Hof  ")  to  a  non-member  {supra,  p.  120).  Since 
public  interests  were  also  involved  in  these  cases,  the  commune, 
as  such,  later  had  a  right  of  retractive  purchase  under  some  legal 
systems  {e.g.  the  town  law  of  Biel  in  Switzerland)  in  case  no  com- 
munist should  exercise  it.  Generally  speaking,  the  markmen's 
retractive  right  was  by  far  not  so  common  as  the  heir's  right 
of  preemption. 

The  retractive  rights  of  the  imperial  knightage,  which  were  later 
developed,  rested  upon  similar  preconditions.  The  markmen's 
rights  of  preemption  developed  in  rare  cases  into  a  so-called  right 
of  "  Territorial  "  retraction,  in  favor  of  the  Territories.  These 
forms  of  retractive  right  no  longer  exist  in  the  present  law. 

(3)  Preemption  Rights  based  on  Vicinage  ("  Xachbarlosung  ", 
"  Fiirnossenrecht  ",  "  retractus  ex  iure  vicinitatis  ").  This  existed 
in  favor  of  a  next  neighbor  ("  Anrainer  ")  of  a  rural  or  of  an  urban 
piece  of  land.  Like  the  markmen's  right  of  preemption,  it  was 
a  special  development  of  the  heir's  preemption  right.  It  was 
known  only  to  a  few  regions,  especially  in  Friesland  and  in  Sax- 
ony.    It  has  disappeared  from  the  present  law. 

Allied  to  it  was  the  right  of  associational  retraction  ("  Genossen- 
losung  ")  which  existed  in  favor  of  the  members  of  a  real  commune, 
such  for  example  as  an  Alp-association,  with  respect  to  the  shares 
in  its  profits. 

(4)  Preemption  Rights  based  on  Co-ownership  ("  Retrakt  aus 
dem  ^Miteigentun  ",  "  retractus  ex  iure  condominii  ").  —  This  was 
particularly  important  in  the  form  of  the  right  enjoyed  by  con- 
ventional co-heirs  ("  Ganerben  ").  It  entitled  them  to  retrac- 
tion in  case  of  the  alienation  of  an  ideal  share  of  land  held  in  col- 
lective or  co-ownership.  Preserved  in  the  French  law  in  the  case 
of  the  herital  community,  and  adopted  in  the  Code  Civil,  it  has 
passed  over  into  the  German  Civil  Code,  and  in  the  form  of  a 
statutory  preemption  right  of  purchase  enjoyed  by  co-heirs 
(§§  2034-2037)  has  thus  become  imperial  law.  With  this  excep- 
tion no  retractive  right  based  on  co-ownership  is  possible  today  save 
in  the  case  of  communities  subject  to  the  rules  of  State  law. 

400 


Ch.\P.   VII]  THE    LAW    OF   LAXD  :     REAL    RIGHTS  [§  56 

(5)  The  PreemiMon  Right  of  Part  Owners  (''  Gespilderecht ", 
"  Teillosung  ",  "  retractus  ex  iure  congrui  ").  This  was  a  right 
widely  prevalent  in  older  times,  both  in  rural  and  urban  localities, 
which  secured  a  preemption  right  to  part-owners  ("Teilgenossen", 
"  Geteilen  "),  —  that  is,  to  the  owners  of  parts  of  an  original 
unit  of  land  which  was  afterwards  divided  or  split  ("  gespalten  ") 
among  them,  — in  order  to  make  possible  a  reunion  of  the  parts. 
It  was  especially  fa\'ored  in  so-called  "  Einzinsereiverhaltnisse  " 
(pooled-rent  tenancies),  since  here  the  connection  of  the  parts 
was  preserved  by  means  of  one  rent-payer  ("  Zinstrager  ")  ap- 
pointed by  the  co-associates.  It  has  been  done  away  with  in  the 
modern  law  of  Germany.  The  Swiss  Civil  Code  (§  682),  on  the 
contrary,  has  recognized  a  statutory  preemption  right  in  each 
co-owner  as  against  any  non-owner  who  acquires  a  share. 

The  right  of  one  whose  land  is  taken  by  expropriatio7i  to  regain 
possession  in  case  it  has  become  useless  for  the  purposes  for  which 
it  was  taken,  is  a  modern  form  of  the  old  "  Gespilderecht  "  which 
is  still  recognized  in  the  State  law"  of  the  present  day ;  for  example 
in  Prussia.^ 

(6)  Manorial  Preemption  Rights  {"  grundherrliche  Retrakt- 
rechte ",  "  retractus  ex  iure  dominii  directi  ").  Such  rights 
of  the  lord  in  the  case  of  peasant  holdings,  and  of  the  feudal  lord 
as  well  as  of  the  "  agnates  "  (collateral  kin)  in  the  case  of  fiefs, 
could  originate  only  after  rentalers  and  feudal  tenants  had  ac- 
quired dispositive  rights  over  their  tenements.  They  have  almost 
completely  disappeared. 

(II)  Preemption  Rights  based  on  Contract  (Options).  —  These 
were  common  in  the  medieval  law.  When  land  was  conveyed 
or  leased  and  an  optional  right  of  purchase  was  given  to  the  alienor 
or  to  a  third  person,  there  originated  a  real  right  effective  against 
anybody  whatever,  which  real  effect  was  based  upon  a  public 
act  of  transfer.  After  the  Reception  men  continued  for  a  while 
to  recognize  the  possibility  of  creating  "  real  "  rights  of  option, 
that  is,  true  rights  of  "  preemption  "  ("  Naherrechte  ") ;  and 
distinguished  them  from  the  statutory  form  as  "  retractus  con- 
ventionales."  But  later,  when  public  forms  of  transfer  were 
abandoned,  legal  theory  found  itself  obliged  to  deny  the  real 
effect  of  such  rights.  Thereafter  the  conception  of  "  preemption  " 
("  Niiher-")  rights  based  upon  contract  was  in  many  localities 
wholly  abandoned,  merely  an  obligational  effect  as  against  the 
other  party  to  the  contract  being  attributed  to  option  ("  Vor- 
1  Gierke,  "Privatrecht  ",  II,  797. 
401 


§  56]  THE    LAW    OF   THINGS  [BoOK   II 

kaufs-")  rights  created  by  agreement.  In  modern  times  this  view- 
point was  represented  by  Eichhorn,  Gerber,  Gengler,  Beseler, 
Roth,  Stobbe,  and  II.  O.  Lehman,  among  other  schohirs.  How- 
ever, the  introduction  of  the  modern  hind-book  system  made  pos- 
sible, here  also,  a  return  to  the  older  law.  Just  as  the  Prussian 
"  Landrecht  "  and  the  Austrian  legislation  made  it  possible  to  give 
a  real  character  to  a  purchase-option  by  entry  in  the  land  register, 
thereby  transforming  it  into  a  real  preemption  right  ("  Naher- 
recht  "),  so  the  new  Civil  Code  (§§  1094-1104)  has  recognized 
for  all  German}',  in  a  purchase-option  created  by  registration 
(that  is,  by  contract),  a  consensual  "  Niiherrecht  "  of  imperial 
law  which  is  a  limited  real  right.  This  present  preemption  right 
has  the  effect  against  third  parties  of  a  cautionary  notice 
("  Vormerkung  "),  in  securing  the  claim  to  a  conveyance  of  owner- 
ship which  arises  from  the  exercise  of  the  right  (§  1098).  The  pro- 
visions of  the  Swiss  Civil  Code  (§  GSl)  are  to  the  same  effect. 


402 


Chap.  VIIIJ 


THE   LAW    OF    CHATTELS 


[§57 


Chapter  VIII 


THE  LAW  OF  CHATTELS 


Topic  1.    Possession  of  Chattels 

§  57.   Possession     of     Chattels,     in 
general. 
I.    Seisin  of  Chattels  in  the 

Medieval  Law. 
II.    The    Modern    Develop- 
ment. 
§  58.    Chattel  Actions,  particularly 
the  Rule  "Hand  must  war- 
rant Hand." 

I.  The  Doctrine  of  the  Older 
Law. 

(1)  Voluntary    delivery. 

Action  of  a  bailor. 

(2)  Involuntary   loss   of 

possession.  Ac- 
tion for  lost 
chattels. 

(A)  Procedure  upon 

detection     in 
the  act. 

(B)  Action    of    lar- 

ceny or    rob- 
bery. 

(C)  FoUomng      the 

trail. 

(D)  The  "Ane- 

fang"  pro- 
cedure —  i.e. 
voucher  to 
warranty  or 
third-hand 
procedure. 

(E)  The    direct    or 

simple  action. 

(F)  Inconsistencies 

with  the 

"publicital" 
principle      of 
seisin. 
II.   Exceptions        to        the 
Theory   of   the    Older 
Law. 
(1)  Exceptions    to    the 
rule   "hand   must 
warrant  hand." 
(A)  Action    by    the 
bailor  against 
third  persons, 
alienees  of  a 
custodian. 


(B)  Same,     against 

vendees  or 
pledgees  of 
artisan  bail- 
ees for  altera- 
tion. 

(C)  Action  by  orig- 

inal possessor 
against  a  pres- 
ent possessor. 

(D)  Action  of  bailor 

against      any 

third  person. 

(2)  Exceptions     to    the 

general    right     of 

pursuing     a     lost 

chattel. 

(A)  In   the   case   of 

things  bought 
in  market 
overt. 

(B)  (In      Hanseatic 

cities :) 
Things        from 
over  seas,  etc. 

(C)  The  Jews.     The 

Talmud  law 
as  to  the  con- 
cealment of 
stolen  goods, 
etc. 
III.  Development  since  the 
Reception. 

(1)  Distinction  between 

voluntary  and 
involuntary  loss 
of  possession. 

(A)  Voluntary    loss 

of  possession. 

(B)  Involuntary 

loss  of  pos- 
session. 

(2)  No    distinction    be- 

tween voluntary 
and  involuntary 
loss  of  posses- 
sion. 

(A)  The    bona    fide 

possessor. 

(B)  Manner    of   ac- 

quiring pos- 
session. 


403 


57] 


THE    LAW    OF   THINGS 


[Book  II 


(3)  The  Gorman  Civil 
Code  and  the  Swiss 
Civil  Code. 

Topic  2.     Ownership  op  Chattels 
§  59.    Origin  and  Content  of  Owner- 
ship in  Chattels. 
I.    Origin. 
II.    Content. 


Topic  3. 


Acquisition 
TO  Chattels 


OF   Title 


§  60.    Occupancy. 

I.    Occupanev  of  Ownerless 

Chattels. 
II.    The  Law  of  Apiculture. 

III.  Ordinary  Trove. 

(1)  The  older  law. 

(2)  In  modern  times. 

IV.  Treasure  Trove. 
V.    Wreck. 

VI.    Booty  of  War. 
§  61.   Accession    of    l<"^xtures,    and 
Specification. 
I.   Accession  of  Fixtures. 
II.    Specification. 
§  62.   Appropriation  of  Fruits. 
I.    The  Older  Law. 
II.    The  Modern  Law. 
§  63.   Alienation  of  Chattels. 

I.    Alienation    by    Persons 
Entitled  to  Convey. 

(1)  The  older  law. 

(2)  The  modern  law. 
II.   Acquisition  of  Title  from 

Persons      only      Ap- 
parently   Entitled    to 
Convey. 
§  64.    Positive  Prescription. 
I.    The  Older  Law. 
II.    The  Modern  Law. 

Topic  4.     The    Law   of  Chattel 

Pledges 
§  65.    The  Older  Law  of  Pledge. 

I.    The  Possessory  Pledge. 
(1)  Creation. 


§66. 


(A)  Pledge  by  con- 

tract,—  "giv- 
en" pledges. 

(B)  Private  distress, 

—  "taken" 
pledges. 

To  satisfy  con- 
tractual 
debts. 

As  proof  of 
and  security 
against  dam- 
ages other 
than  from 
breach  of  con- 
tract. 

(C)  Judicial  distress. 

(2)  Content       of       the 

pledge  right. 

(3)  Satisfaction. 

II.    The    Modern    Contract 
Pledge     of     Chattels. 
Pledge    Avithout    Pos- 
session —  the  Chattel 
Hypothec. 
The  Modern  Development  of 
the  Law  of  Chattel  Pledges. 
I.    In  general. 

(1)  Creation. 

(A)  The       contract 

pledge. 

(B)  Statutory  rights 

of  pledge. 

(C)  "Taken" 

pledges. 

(2)  Content. 

(3)  Termination. 

(4)  Satisfaction. 

II.    Contractual  Pledge- 

rights  in  Ships. 

(1)  Registry  pledges. 

(2)  Bottomry  pledges. 

III.  Rights     of     Pledge     in 

Rights. 

IV.  Pawnbroking. 

V.    Merchants'     Rights     of 
Detention. 


Topic  1.    Possession  of  Chattels 

§  57.  Possession  of  Chattels,  in  general.  (I)  Seisin  of  Chattels 
in  the  Medieval  Law.  — •  Seisin  of  chattels  was  no  different,  in 
theory,  from  seisin  of  lands.  In  one  case  as  in  the  other  it  signified 
actual  control  of  the  thing.  This  phj^sical  control,  however,  was 
required  in  the  case  of  movables  to  co-exist  under  all  circum- 
stances with  actual  custody  ("  Innehabung  ",  "  Gewahrsam  "). 
F'or,  unlike  the  case  of  lands,  an  economic  usufruct  of  chattels 
without  actual   possession   of  them   was   impossible.     Seisin   of 

404 


Chap.  VIII]  THE   LAW   OF   CHATTELS  [§  57 

chattels,  therefore,  could  be  created  only  by  physical  custody  or 
by  the  corporeal  transfer  of  the  thing ;  and  the  loss  of  the  physical 
possession  or  a  giving  away  of  the  thing  necessarily  destroyed  the 
seisin.  In  the  law  of  chattels  seisin  was  necessarily  and  insepa- 
rably "bound  up  with  the  corporeal  element."^  It  followed  — 
an  important  difference  between  the  law  of  chattels  and  of  land 
—  that  multiple  seisin  in  chattels  was  impossible ;  for  only  one 
person  could  ever  exercise  actual  control  over  a  thing  in  the  sense 
of  physical  possession.  Therefore  no  ideal  seisin  was  possible  in 
the  case  of  chattels,  nor  a  dormant  or  expectant  seisin ;  whoever 
had  lost  the  actual  control  or  had  not  acquired  this  was  unable 
to  enforce  in  his  own  interest  the  effects  of  seisin.  Although  the 
medieval  law  did  recognize  one  exception  to  these  rules,  as  regards 
the  loss  of  seisin,  which  will  be  discussed  in  the  following  para- 
graph, that  exception  only  confirmed  the  rule.  Again,  there  was 
originally  no  place  in  the  law  of  chattels  for  the  conception  of 
citation  seisin ;  for  that  originally  presupposed  a  seisin  created  as 
the  result  of  a  judicial  release,  and  in  the  case  of  chattels  no  judi- 
cial release  could  establish  a  seisin  that  could  take  the  place  of  a 
corporeal  delivery.  The  exception  just  mentioned  to  the  general 
rule  that  the  termination  of  physical  control  involved  the  destruc- 
tion of  seisin  and  its  effects,  was  capable,  however,  as  will  be  shown, 
of  producing  effects  in  certain  cases  in  the  law  of  chattels  which 
were  equivalent  to  those  of  judicial  seisin.  Finally,  the  rule  that 
every  real  right  must  be  manifested  in  the  form  of  seisin  and  could 
be  conveyed  only  under  that  form,  —  the  so-called  "  translative  " 
effect  of  seisin,  —  held  good,  also,  in  the  law  of  chattels.  But,  as 
has  been  already  mentioned  (supra,  p.  207),  it  was  more  strictly 
adhered  to  in  the  law  of  chattels  than  in  the  law  of  lands.  For 
whereas  in  the  latter  the  public  and  manifest  act  of  release  ("  Auf- 
lassung  ")  and  of  entry  in  the  land-book  were  given  by  force  of 
law  the  eflFect  of  a  conveyance,  without  the  necessity,  in  addi- 
tion, of  any  livery  of  the  corporeal  seisin,  this  last  remained  the 
essential  precondition  to  the  transfer  of  a  right  under  the  law  of 
chattels.  Such  a  transfer  could  there  be  perfected  only  "  by  a 
change  in  the  visible  corporeal  possession."  ^  Thus,  in  the  law 
of  chattels,  in  a  still  stricter  sense  than  in  the  law  of  land,  seisin, 
in  the  sense  of  physical  possession,  was  the  exclusively  necessary 
and  under  all  circumstances  the  sufficient  dress,  of  a  real  right  in 
a  thing.  It  was  not  legally  replaceable  and  actually  displaced, — 
as  it  came  to  be  in  the  law  of  land  as  a  result  of  the  development 
'  Gierke,  "  Privatrecht ",  II,  193.  2  j^id,^  207. 

405 


§  57]  THE    LAW    OF   THINGS  [BoOK   II 

of  the  land-book  system,  —  by  a  public  and  officially  attested 
mode  of  creation. 

(II)  The  Modern  Development.  —  It  has  already  been  re- 
marked {supra,  J).  20G)  in  discussing  the  law  of  land,  that  the 
distinction  between  the  law  of  land  and  the  law  of  chattels 
which  was  unknown  to  the  Roman  law  disappeared  after  the 
Reception,  at  least  in  the  common  law.  But  this  view,  which 
was  inconsistent  with  the  ideas  of  the  native  law,  did  not  attain 
any  general  prevalence  and  authority.  On  the  contrary,  that 
contrast  was  deepened  in  a  noteworthy  respect  by  the  introduc- 
tion of  the  land  register.  True,  the  Swiss  Civil  Code  has  very 
recently  made  a  novel  attempt  in  one  case  to  assimilate  the  law 
of  land  and  of  chattels :  namely,  when  a  chattel  is  conveyed 
subject  to  a  reservation  of  ownership,  such  a  reservation  is 
only  effective  when  entered  in  a  public  register  at  the  then 
residence  of  the  acquirer  (§  715).  The  peculiar  form  of  chattel 
mortgage  ("  Fahrnisverschreibung  ")  in  a  pledge  of  cattle  may 
also  be  classified  under  this  principle  {infra,  §  66).  In  other 
respects,  however,  the  "  publicital  "  effects  peculiar  to  the  old 
seisin,  which  were  attached  in  the  land  law  to  entry  in  the  land- 
book,  were  attributed  to  mere  possession  in  the  law  of  chattels. 
There  resulted  from  this  distinction  different  consequences  in  the 
modern  law  of  land  and  of  chattels  as  regards  a  transfer  of  rights 
("  Rechtsiibertragung  ")  and  of  legal  title  ("  Legitimation  ",  — 
cf.  §  58  infra). 

The  law  of  seisin  recognized  the  economic  usufruct  of  a  thing 
as  the  characteristic  of  actual  physical  control ;  and  therefore,  as 
already  stated  {supra,  p.  186),  it  recognized  the  possibility  of  mul- 
tiple seisin  in  the  case  of  lands,  though  not  in  the  case  of  chat- 
tels. In  the  case  of  movables,  this  \'icw  led  to  the  same  result 
as  in  the  Roman  law,  which  ascribed  possession  ("  Besitz  "), 
generally  speaking,  only  to  one  holding  a  thing  with  "  animus 
domini  ",  while  speaking  merely  of  "  detention  "  in  the  case  of 
every  other  person  in  physical  control  of  a  thing.  This  view, 
however,  has  been  abandoned  by  the  law  in  its  latest  stage,  for 
according  to  the  new  Civil  Code  a  multiple  possession  is  possible 
in  movable  things  precisely  in  the  same  manner  as  in  land.  Xot 
only  the  "immediate"  possessor  who  derives  his  possession  from 
another  person,  —  the  "  superior  ])ossessor  "  ("  Besitzherr  ''),  — 
but  also  such  superior  possessor,  has  actual  possession :  the 
present  law  considers  the  rcciuircnicnts  of  j)osscssion  to  be  satisfied 
in  the  general  control  ("  Sachhcrrschaft  ")  which  he  also  exercises 

406 


Chap.  VIII]  THE   LAW   OF   CHATTELS  [§  58 

over  the  thing.  There  is  here  involved  a  consistent  further  de- 
velopment and  perfection  of  ideas  which  underlay  the  old  Ger- 
manic law ;  for  the  repudiation  of  the  naively  sensuous  test  of 
usufruct  in  the  sense  of  seisin  made  it  possible  to  bridge  the  dif- 
ference between  the  law  of  chattels  and  of  land,  without  doing 
violence  to  the  theory  of  the  old  law. 

For  the  rest,  there  remains  as  the  most  important  difference 
between  the  possession  of  movables  and  immovables  the  respec- 
tive forms  of  actions  for  the  protection  of  possession,  which  are  at 
times  subject  to  different  conditions ;  and  the  consequently  dif- 
ferent effect  of  possession  upon  the  substantive  rights  it  covers. 

In  the  following  paragraphs  we  shall  speak  in  the  first  place  of 
the  former  difference;  the  substantive  law,  particularly  the  ac- 
quisition of  the  ownership  of  chattels  by  persons  not  entitled  to 
their  possession,  will  be  discussed  below  (§  63). 

§  58.  Chattel  Actions,  particularly  the  Rule  "  Hand  must 
warrant  Hand."  ^  (I)  The  Doctrine  of  the  Older  Law.  ^ —  The  legal 
protection  which  was  associated  with  seisin  in  the  IMiddle  Ages 

^  Sohm,  "Der  Prozess  der  Lex  Salica"  (1867);  Laband,  "Die  ver- 
mogensrechtlichen  Klagen  nach  den  sachsischen  Rechtsquellen  des  Mit- 
telalters"  (1869) ;  Heusler,  "Die  Beschrankimg  der  Eigentumsverfolgung 
an  Fahrnis  und  ihr  Motiv  im  deutschen  Recht"  (1871) ;  Herrmann,  "Die 
Grundelemente  der  altgermanischen  Mobiliarvindikation",  no.  20  (1886) 
of  Gierke's  " Untersuehungen " ;  London,  "Die  Anfangsklage  in  ihrer 
urspriinglichen  Bedeutung",  ed.  by  Pappenheim  (1886);  O.  Gierke,  "Die 
Bedeutung  des  Fahrnisbesitzes  fiir  streitiges  Recht  nach  dem  BGB" 
(1897) ;  Zycha,  "Zur  Auslegung  des  Titels  37  der  Lex  Salica,  'De  vestigio 
minando'",  in  Z^.  R.  Cr.,XXII  (1901),  155-180;  Herbert  Meyer,  "Entwer- 
tung  und  Eigentum  im  deutschen  Fahrnisrecht "  (1902);  Wellspacher, 
" Publizitatsgedanke  und  Fahrnisklage  im  'Usus  modernus'",  in  Z.  Priv. 
off.  R.,  XXXI  (1904),  631-694  ;  Alfred  Schultze,  "Geriifte  und  Marktkauf 
in  Beziehung  zur  Fahrnisverfolgung ",  in  " Breslauer  Festgabe  fiir  F.  Dahn", 
I  (1905),  1-63,  with  which  compare  Eehme  in  Gotting.  G.  Anz.,  CLXXI, 
1  (1909),  2.50-258;  "Publizitat  und  Gewahrschaft  im  deutschen  Fahrnis- 
recht", in  Ihcring's  J.  B.,  XLIV  (1905),  1.59-186;  Ranch,  "Spurfolge 
und  Anefang  in  ihren  Wechselbeziehungen,  ein  Beitrag  zur  Geschichte  des 
deutschen  Falu-nisprozesses"  (1908);  with  wliieh  compare  A.  Schultze 
in  ZK  R.  G.,  XXIX  (1908),  428-440;  Herbert  Meyer,  "Das  PubHzitats- 
prinzip  im  Deutschen  Biirgerlichen  Reclit",  in  O.  Fischer's  "Abhand- 
lungen",  XVIII,  2  (1909) ;  and  of.  A.  Schultze,  in  Z^.  R.  G.,  XXXI  (1910), 
641-651 ;  Wahle  in  Krit.  Vj.  G.  R.  W.,  XLIX  (3d  ser.  XIII,  1911),  313-346 ; 
and  J.  V.  Gierke  in  Z.  ges.  H.  R.,  LXX  (1911),  382-398 ;  Rauch,  "Gewahr- 
schaftsverhiiltnis  und  Erbgang  nach  iiltereni  deutschen  Recht",  in  the 
"  Festgabe  fiir  K.  Zeumer "  (1910),  .529-555  ;  A.  Schultze,  "  Die  Bedeutung 
des  Zuges  auf  den  Gewahren  im  Anefangsverfalu*en",  in  "Festschrift  fiir 


also  in  Arch,  zivil.  Praxis,  CVI,  .309^76,  CIX,  1-142;  J.  B.  Ames,  "The 
Disseisin  of  Chattels"  in  Select  Essays  A.  A.  L.  H.,  Ill  (1909),  541-590; 
O.  W.  Holmes,  "Das  gemeine  Recht  EngLands",  translated  by  Leonhard 
(1912),  163-207,  on  the  bailee  in  Anglo-American  common  law. 

407 


§  58]  THE    LAW    OF   THINGS  [BoOK   II 

received  effect  in  the  law  of  land  (supra,  j).  195)  not  only  in  favor 
of  the  holder  of  a  corporeal  seisin  who  was  disturbed  in  his  immedi- 
ate control  of  the  land  by  the  wrongful  action  of  a  third  party,  but 
also  in  favor  of  the  holder  of  an  ideal,  dormant,  or  expectant  seisin. 

Accordinjj;ly,  when  a  question  was  involved  of  a  violent  dis- 
seisin, or  when  a  rentaler  violated  the  proprietary  seisin  of  the 
landlord  by  wrongful  acts,  the  seisin  so  displaced  or  violated 
exercised  its  "  defensive  "  and  "  offensive  "  effects.  Thanks  to 
the  "  publicital  "  character  lent  to  it  by  the  overt  act  creating  it, 
it  made  possible  the  reacquisition  of  the  land  from  any  third  per- 
son without  regard  to  the  question  whether  such  i)rcsent  holder 
had  acquired  through  a  wrongful  disseisin  of  the  owner  or  his 
tenant,  or  through  a  wrongful  act  of  the  tenant. 

This  was  not  true  in  the  Germanic  law  of  chattels.  From  the 
earliest  times  this  has  distinguished  the  two  cases  of  a  voluntary 
deli^'ery  of  a  thing  and  an  involuntary  loss  of  possession,  and  has 
a])plied  the  general  principles  of  the  law  of  seisin  in  the  first  case 
alone. 

(1)  Voluntary  Bclhcry.  Action  of  a  Bailor.  — Whoever  gave  a 
movable  into  the  hand  of  another  person  thereby  deprived  him- 
self of  its  seisin,  for  he  released  it  from  his  custody.  He  did  not, 
however,  on  that  account  need  to  abandon  his  rights  to  it  entirely. 
This  happened  only  in  case  of  a  conveyance ;  not  when  he  loaned 
it  to  another,  or  otherwise  entrusted  it  to  him.  For  in  this  case 
he  gave  the  thing  out  of  his  own  hand  only  upon  a  condition,  an 
agreement  to  return  it  ("  Riickfallsgeding  ").  The  obligation  of 
such  other  person  to  him  varied  with  the  nature  of  this  agree- 
ment :  if,  for  example,  this  was  to  return  the  thing  loaned  at  the 
termination  of  a  certain  period,  the  action  was  then  based  upon 
an  allegation  that  the  time  had  run,  and  that  the  defendant  was 
retaining  possession  beyond  the  stipulated  time  ("  over  bescedene 
tiet  ").  Only  the  other  party  to  tlie  contract,  however,  had  sub- 
jected himself  by  the  contract  to  the  legal  rights  of  the  owner. 
The  owner  could  therefore  demand  the  return  of  the  thing,  that  is 
a  reconveyance  of  the  seisin,  from  him  alone.  He  could  not  de- 
mand it  from  a  third  party  to  whom  possibly  the  thing  had  mean- 
while passed.  So,  for  example,  if  the  bailee  had  sold  the  thing 
to  C,  —  which  of  course  he  had  no  right  to  do,  since  he  was  only 
a  loan-possessor  ("  Leihbesitzer  "),  — or  if  D  had  stolen  it  from 
the  bailee  to  whom  it  was  entrusted,  then  the  owner  had  no  power 
or  protection  as  against  such  third  persons.  He  must  always 
proceed  against  the  bailee  only,  because  the  agreement  was  made 

408 


Chap.  VIII]  THE    LAW    OF   CHATTELS  [§  58 

with  him  alone;  he  was  obHged  to  rely  exclusively  upon  such 
bailee ;  he  might  possibly  obtain  damages  from  him,  but  he  did 
not  reacquire  the  thing. 

This  was  a  limitation  upon  chattel  actions  peculiar  to  the 
medieval  law  of  things,  —  not  only  to  the  German  but  also  to  the 
French  and  Anglo-Norman.  It  was  a  necessary  consequence  of 
the  cardinal  principles  of  the  law  of  seisin,  which  were  bound  to 
lead  at  this  point  to  a  fundamental  distinction  between  the  law  of 
land  and  of  chattels.  If  one,  for  example,  let  land  to  a  peasant 
for  rent,  he  nevertheless  retained  a  proprietary  seisin  which  he 
could  enforce  even  against  third  persons.  But  whoever  abandoned 
possession  of  a  movable  renounced  the  right  therein  which  found 
visible  expression  in  his  seisin,  without  which  its  "  publicital  " 
quality  was  ineffective ;  and  therefore,  also,  the  power  to  enforce 
his  right  against  third  persons.^  Inasmuch  as  the  seisin  of  the 
former  holder,  —  in  our  case  that  of  the  owner  A,  —  was  extin- 
guished by  a  voluntary  delivery  of  the  thing,  it  followed  that  if 
the  bailee  was  disseised,  he  alone,  and  no  longer  the  owner,  was 
entitled  to  exercise  against  a  third  person  the  action  allowed  one 
who  was  robbed  for  the  return  of  the  object  and  the  fine  im- 
posed for  the  theft.  And  if  the  bailee  wrongfully  alienated  or 
pledged  the  thing,  then  the  owner  could  not  require  it  of  a  pur- 
chaser or  a  pledgee  or  from  their  legal  successors,  but  was  obliged 
to  satisfy  his  claim  by  recourse  against  the  bailee  himself.  Whether 
the  thing  had  been  taken  from  the  seisin  of  the  bailee,  and  how  it 
had  come  into  the  seisin  of  the  third  person,  whether  it  was  stolen 
from  or  alienated  by  the  former,  and  whether  such  third  person 
had  acquired  possession  with  or  without  knowledge  of  the  wrong, 
and  the  like  questions,  were  therefore  wholly  disregarded. 

This  principle,  which  there  is  good  reason  to  regard  as  a  general 
one  of  Germanic  law,  already  found  clear  expression,  in  part,  in 
the  ancient  folk-laws.^  In  the  sources  of  the  time  of  the  Law- 
Books  it  is  laid  down  in  many  places  in  form  so  clear  as  to  be  in- 
capable of  misunderstanding,  and  with  express  mention  of  both 
the  consequences  above  stated.^  Frequently  it  was  expressed  in 
the  form  of  a  legal  maxim  :  "  hand  must  warrant  hand  "  ("  Hand 
muss  Hand  wahren  "),  — that  is,  the  hand  in  which  one  has  laid 
the  seisin,  and  that  hand  alone,  must  warrant  its  return  ;  or, 
"  where  you  have  put  your  faith  there  you  must  seek  it  "  ("  wo 
du  deinen  Glauben  gelassen  hast,  musst  du  ihn  suchen  "). 

1  SchuUze,  "Gerufte  und  Marktkauf".  3.  2  Liutprand,  131. 

3  Ssp.,  II,  60,  §  1,  and  "  Rechtsb.  naeh  Distinetionen",  II,  42,  6. 

409 


§  58]  THE    LAW   OF   THINGS  [BoOK   II 

(2)  Involuntary  Loss  of  Possessio7i.  Action  for  Lost  Chattels.  — 
Not  only  he  who  vohintarily  gave  a  movable  out  of  his  hand,  but 
also  he  from  whose  hand  it  was  taken  with  or  without  his  consent, 
lost  the  seisin  in  it.  The  chief  case  of  involuntary  loss  of  posses- 
sion was  that  of  wrongful  disseisin  through  larceny  or  robbery; 
in  the  folk-laws  no  other  case  is  referred  to.  But  things  lost,  or 
which  otherwise  were  taken  out  of  the  hand  of  the  owner,  were 
treated  from  an  early  day  in  the  same  way  as  those  stolen,  not- 
withstanding this  was  not  explicitly  declared  except  in  the  later 
sources.  In  case  of  involuntary  loss  of  possession  no  restriction 
upon  chattel  actions  ever  existed  in  Germanic  law.  The  oldest  of 
its  legal  records  already  recognize  various  distinct  chattel  actions, 
of  which  several  made  it  possible  for  a  person  from  whom  some 
thing  was  taken  by  a  thief  or  robber  (the  usual  case  was  the  theft 
or  robbery  of  cattle)  to  regain  possession  of  the  thing  even  from  a 
third  person. 

(A)  Procedure  upon  detection  in  the  act  ("  auf  handhafter 
Tat  ",  "  hand-having  "  procedure).^  This  was  possible  in  case  the 
wrongdoer  was  discovered  carrying  evidence  of  his  wrong  in  his 
hand,  and  this  had  been  publicly  proclaimed  by  the  hue  and  cry 
("Geriifte"  or  "Geriichte"), — that  is,  by  the  call  of  the  injured 
person  summoning  his  neighbors  to  hurry  to  his  aid.  It  resulted 
in  the  severe  punishment  of  the  wrongdoer.  The  thing  was 
returned  to  him  from  whom  it  had  been  stolen. 

(B)  Action  of  larceny  or  robbery.  —  This  action  was 
brought  in  cases  where  the  wrongdoer  was  not  discovered  "  red- 
handed  "  against  a  person  directly  accused,  and  involved  "  an 
assumption  of  the  subjective  circumstances  of  the  rob})ery  or 
the  theft."  ^  The  purpose  of  the  action  was  a  condemnation  of 
the  thief  or  the  robber  to  a  penalty  imposed  by  statute  for 
larceny  or  robbery,  or  a  judgment  for  the  return  of  the  things 
taken  or  of  their  value. 

(C)  Following  the  trail  ("Spurfolge"). — This  was  resorted 
to  in  case  no  thief  or  robber  was  discovered,  and  also  nobody  could 
be  directly  charged  with  being  such ;  subject  to  the  observance 
of  strict  formalities  (hue  and  cry,  "house-searching"),  it  was 
allowed  to  the  injured  person  "  wlio  learned  early  enough  of  his 
loss  "  for  the  discovery  of  the  thing  whose  ])ossession  was  lost. 
If  the  search  was  successful  within  a  certain  time,  as  for  example 
within  three  nights,  then  the  owner  ("  Spurfolger  ")  could  take 

'  Hrunnar,  "Geschichte  ",  IT,  481  el  sea.,  495  et  seq. 
2  Ibid.,  275. 

410 


Chap.  VIII]  THE   LAW   OF   CHATTELS  [§  58 

possession  of  the  thing.  This,  however,  did  not  by  any  means 
involve  under  all  circumstances  the  punishment  of  the  holder  of 
the  thing.  It  was  possible  that  a  house-owner,  conscious  of  his 
bona  fide  acquisition  of  the  thing,  permitted  the  search  of  his 
house  and  vouched  a  warrantor  ("  Gewahrsmann  ")  from  whom 
he  had  acquired  it.  In  that  case  the  searcher  must  swear  ("  gelo- 
ben  ")  to  bring  the  thing  before  the  court  for  the  purpose  of  ob- 
serving the  "third-hand  procedure"  ("Lex Salica  ",  37  :  "per  tercia 
manu  agramire "),  which  will  be  discussed  below  under  (D). 
Only  after  so  doing  was  he  permitted  to  take  temporary  possession 
of  the  thing  pending  the  arrival  of  the  term  of  court,  at  which 
the  third-hand  procedure  then  took  its  regular  course.  If,  on  the 
other  hand,  the  householder  prohibited  a  search  of  his  house,  but 
this  resulted  nevertheless  in  a  discovery  of  the  missing  thing,  he 
was  deprived,  by  his  prohibition  of  the  search,  of  the  right  to  vouch 
a  warrantor  of  his  possession.  In  this  case  he  was  regarded  as  in- 
dubitably a  thief,  and  must  therefore  not  only  return  the  thing 
but  also  pay  the  penalty  imposed  for  larceny.  On  the  other 
hand,  the  searcher  forfeited  a  penalty  if  the  search  of  the  house 
proved  fruitless. 

(D)  The  "Anefang"  ("hand-laying")  PROCEDrRE. — This  was 
resorted  to  when  he  from  whom  the  thing  was  stolen  found  it  in 
the  hand  of  a  stranger  without  search,  or  after  the  expiration  of 
the  statutory  period  to  which  such  search  was  limited.  He  could 
then  take  possession  of  it  subject  to  the  observance  of  certain 
formalities  which  certainly  went  back  into  a  great  antiquity. 
He  was  bound  to  "  lay  hold  of  it  "  ("  anfassen  ")  in  a  manner 
which  was  exactly  prescribed.  For  example,  in  the  case  of  cattle, 
he  must  grasp  the  right  ear  of  the  animal  with  his  left  hand 
and  with  his  right  foot  step  against  the  animal's  fore-leg.  The 
whole  procedure  received  its  name  from  this  legally  prescribed 
act,  —  designated  in  the  Frankish  sources  as  "  anafangjan  ", 
"  furifangon  " ;  in  the  Low  German  sources  of  the  ]Middle  Ages, 
"  anefang  "  ;  in  the  High  German,  "  furfang  ",  "  verfang."  By 
it  the  plaintiff  identified  the  thing  as  one  stolen  from  him.  Of 
course,  he  did  not  by  such  "  hand-laying  "  directly  charge  the 
possessor  himself  with  the  theft  or  the  robbery.  The  purj)ose  of 
the  "  Anefang-"  procedure  was,  indeed,  to  reach  the  thief  through 
the  identification  of  the  thing  stolen  ;  but  though  he  was  not  in  this 
way  discovered,  nevertheless  the  procedure  held  the  thing  for  the 
complainant.^  If  the  possessor  had  not  been,  then  a  third  per- 
1  A.  Schullze  in  Z^.  R.  G.,  XXIX,  432. 
411 


§  58]  THE    LAW    OF   THINGS  [BoOK   II 

son  must  have  been,  the  thief  or  robber.  The  "  Anefang  "  was 
"the  beginning  of  the  action";  therefore  the  possessor  was 
obHged  to  make  answer  to  the  act  of  the  plaintiff,  and  to  dear 
himself  of  the  charge  of  theft  which  was  objectively  implicit  in 
the  action.  The  ordinary  reply  of  the  possessor,  in  case  he  was 
not  himself  the  thief,  consisted  in  his  naming  the  third  person 
from  whom  he  had  received  the  thing ;  that  is,  he  vouched  a  per- 
son to  warranty  for  his  possession,  he  appealed  to  a  third  hand : 
whence  the  expression  "intertiare"  or  "third-hand  procedure" 
in  the  sources  of  the  Frankish  period.  According  to  the  Gothic, 
Frankish,  High  German,  and  later  Saxon  law,  the  possessor  was 
bound  to  bring  his  warrantors  before  the  court  within  a  certain 
period,  and  to  make  formal  oath  of  his  complaint  immediately 
after  the  "  Anefang  "  had  taken  place  ("  agramire  ",  "  adramire  "). 
According  to  the  more  ancient  Lombard  and  early  Saxon  law,  on 
the  other  hand,  the  possessor  led  the  plaintiff  to  the  warrantor.^ 
The  warrantor  thus  appealed  to  might  in  turn  appeal  to  a  pred- 
ecessor in  title,  and  he  again  to  another ;  and  in  some  legal  sys- 
tems, —  as  e.g.  the  Frankish,  and  in  the  Sachsenspiegel,-  —  this 
could  be  indefinitely  repeated ;  whereas  under  other  systems,  — 
as  e.g.  the  Saxon  town  laws,  —  such  vouchers  to  warranty  ceased 
at  the  third,  or  at  the  second,  fifth,  sixth,  or  seventh  man.  There 
existed  also  restrictions  of  locality ;  for  example,  in  the  Sachsen- 
spiegel the  appeal  could  not  be  made  across  navigable  waters.^ 
An  obligation  was  thus  imposed  upon  the  warrantor  to  defend  the 
action  in  place  of  the  original  defendant.'^  The  chattel  whose 
title  was  in  dispute  was  delivered  ("  zugeschoben  ")  to  the  war- 
rantor, "he  received  the  'shove'  (' Schub ')  ";  and  he  thereby 
acquired,  in  relation  to  the  original  defendant,  who  was  thus  eli- 
minated from  the  suit,  the  position  of  a  fiduciary  ("  Treuhiindcr  ") : 
he  was  bound  to  redeliver  the  thing  to  him  in  case  of  a  successful 
defense  against  the  plaintiff.  The  warrantor  might  vouch  a 
further  warrantor  from  whom  he  had  ac(iuircd  the  thing.  In 
this  case,  that  is  in  case  of  repeated  vouching  to  warranty,  "  the 
thing  wandered  back  from  hand  to  hand  through  which  it  had 
formerly  passed  by  successive  juristic  acts."  '  If  the  defendant 
^yas  guilty  of  a  breach  of  warranty,  that  is  if  the  warrantor  did  not 
appear,  or  refused  to  assume  the  defense  "  shoved  "  upon  him,  or 

>  Ssp.,  II,  30,  §  5.  2  Ibid.,  §  6.     • 

'  Note  the  manner  in  wliicb  tlie  Ssp.,  II,  30,  §  5  continues. 
■•  Brunner,  "Geschichte",  II,  504,  following  Sohm,  "Prozess  der   Lex 
SaUca"  (1807),  113. 

412 


I 


Chap.  VIII]  THE   LAW   OF   CHATTELS  [§  58 

if  he  was  defeated  in  the  suit,  then  such  defendant  received  back 
the  purchase  price  from  his  warrantor  who  thus  broke  his  war- 
ranty ;   but  since  he  had  been  defeated  in  the  suit  the  warrantor 
was  himself  obhged  to  deliver  the  thing  to  the  plaintiff,  and  in 
addition  to  pay  the  penalty  for  theft.     He  was,  of  course,  released 
from  the  latter  obligation  in  case  he  was  able  to  clear  himself  of 
any  suspicion  of  theft ;   and  this  he  could  accomplish  by  a  purga- 
tive oath  by  which  he  proved  an  honest  acquisition  of  the  thing, 
particularly  a  notorious  acquisition  such  as  a  purchase  in  market 
overt. ^     This  was  also  open  to  him  who  could  not  resort  to  a 
voucher  to  warranty,  because,  for  example,  he  was  unable  to  name 
the  warrantor,  or  because  the  warrantor  had  died  or  could  not  be 
found  in  the  time  prescribed,  or  because  the  prescribed  number  of 
warrantors  had  already  been  reached,  or  because  the  defendant 
had  lost  possession  of  the  thing  during  the  action.     If,  in  a  case 
of  limited  voucher  to  warranty,  the  last  warrantor  imder  such 
limit  could  prove  a  lawful    acquisition  from  a  predecessor,  he 
must,  to  be  sure,  deliver  the  thing  to  the  plaintiff,  but  he  cleared 
himself  by  that  proof  from  the  suspicion  of  theft;    the  plaintiff 
thus  received  back  the  thing,  but  he  had  to  go  without  any  penalty 
for  the  theft.-     In  addition  to  voucher  to  warranty  other  defenses 
were  open  to  the  defendant.     Certainly  under  the  earlier,  and 
probably  still  under  the  older,  law  he  could  allege  original  acquisi- 
tion of  the  thing ;  declaring,  for  example,  that  he  had  gaine'd  it  in 
rightful  feud ;   that  he  had  raised  the  animal  in  his  stable ;    that 
the  linen  was  spun  in  his  own  house ;  etc.^     The  Frankish  sources 
already  mention  a  plea  by  the  defendant  that  he  had  inherited 
the  thing.     In  this  case,  he  could  not  vouch  a  warrantor,  because 
the  obligation  of  warranty  was  not  heritable ;    consequently,  the 
law  let  the  matter  drop  upon  proof  of  lawful  acquisition,  or  de- 
manded in  addition  a  proof  of  rightful  acquisition  by  the  decedent.* 
If  he  proved  these  allegations,  —  in  the  last  case  he  must  include 
proof,  under  the  "Lex  Salica  ",  of  the  right  of  the  decedent,  —  he 
thereby  succeeded,  not  only  in  freeing  himself  from  the  suspicion 
of  theft,  as  in  case  of  a  purgative  oath,  but  in  completely  defeating 
the  complaint.     In  this  case  the  plaintiff  who  had  thus  lost  his 
suit  was  obliged  to  pay  a  penalty  for  his   unjust  "  Anefang  " ; 

1  Ssp.,  II,  3G,  §  1. 

2  A.  SchuUzc  in  "Festschrift  fiir  Gierke  ",  783. 

3  Ssp.,  II,  ;i(),  §  3. 

■•  Ranch  has  shown  this  in  his  essay  in  the  "Festgabe  fiir  Zeumer"; 
his  view  has  been  indorsed  by  A.  Schultze  in  the  "Festschrift  fiir  Gierke", 
768,  and  by  Heymann,  in  ZK  R.  G.,  XXXII  (1911),  431. 

413 


§  58]  THE    LAW    OF   THINGS  [BoOK    II 

and,  if  a  personal  oliarge  of  theft  had  been  made,  to  bear  the  legal 
consequenees  of  a  false  aecusation.^  Instead  of  throwing  the 
responsibility  upon  a  predecessor  in  title,  every  warrantor,  equally 
with  the  original  defendant,  might  allege  original  acquisition, 
such  as  the  breeding  of  the  animal  or  the  making  of  the  thing, 
thus  establishing  his  claim  to  it  as  against  the  original  defendant, 
and  so  win  it  for  the  plaintiff.'  The  "  Anefang  "  action  was  based 
solely  upon  involuntary  loss  of  seisin,  and  even  in  the  earliest 
times  it  was  available  when  a  thing  had  not  been  stolen  or  robbed, 
but  lost,  or  possession  thereof  otherwise  involuntarily  lost.  It 
was  "  not  so  much  an  action  by  an  owner  as  by  the  person  who 
had  held  the  thing  in  his  custody  before  it  was  taken  from  his 
possession  by  theft  or  by  robbery."  ^  It  was  not  based,  in  and 
of  itself,  upon  a  right  to  the  thing,  any  more  than  in  case  of  a 
wrongful  dispossession  of  lands.  Though  the  plaintiff'  designated 
as  "  his  "  the  thing  he  laid  his  hands  on,  he  thereby  merely  alleged 
the  identity  of  that  thing  and  tlie  one  he  had  lost.  Therefore  the 
"  Anefang  "  action  was  available  not  only  to  the  owner  but  also  to 
a  finder  and  to  any  other  person  in  whose  hand  the  owner  had 
put  it,  —  for  example,  a  bailee  ("  Verwahrer  "),  a  borrower,  a 
hirer,  or  a  pledgee ;  for  only  these  were  deprived  of  the  seisin  by 
the  theft,  and  not  the  owner  who  had  already  given  to  another 
his  seisin  by  delivery  of  the  thing.  The  owner,  therefore,  could 
not  himself  bring  the  "Anefang"  action  when  the  thing  was  stolen 
from  his  bailee  ("  Vertrauensmann  ",  —  suj)ra,  p.  408).  On  the 
other  hand,  when  members  of  his  family  or  of  his  personal  follow- 
ing, —  in  other  words,  his  household  companions,  —  alienated  a 
thing,  the  house-lord  could  reclaim  it  by  "  Anefang  "  :  this  was 
the  case  of  so-called  " abgetragene "  things  (things  "carried  oft'").^ 
This  apparent  exception,  however,  was  quite  reconcilable  with 
the  general  principles,  for  the  owner  had  not  deprived  himself  of 
seisin  of  the  things  by  delivery  of  them  to  liis  wife  or  children  or 
servants,  since  these  persons,  who  were  his  mere  instruments,  re- 
ceived no  dispositive  ])ower  thereover,  and  consequently  no  seisin. 
(E)  Finally,  in  addition  to  the  "  Anefang  "  action  for  cases  of 
involuntary  loss  of  possession  there  existed  in  the  medieval  law  a 
so-called  "direct"  or  "simple"  action  ("schlichte  Klage").'' 
This  was  "  substantially  the  same  action  as  the  '  Anefang.'     It 

'  Brunner,  "Gesehiehte  ",  II,  509. 

2  A.  Schultzc  in  the  "Festschrift  fur  Gierke",  780. 

'  Brunner,  op.  -cit. 

<  Ssp.,  Ill,  0,  §  1. 

»  "Richtstoig  Laadrechts,"  11,  §  3. 

414 


Chap.  VIII]  THE    LAW   OF   CHATTELS  [§  58 

was  lacking  merely  in  the  particular  element  with  which  the 
'  Anefang  '  was  begun."  ^  It  was  less  dangerous  to  the  plaintiff 
than  the  "  Anefang  "  action  to  this  extent,  that  if  he  was 
defeated  it  did  not  involve  a  penalty  for  wrongful  laying  on  of 
hands,  or,  as  the  case  might  be,  a  penalty  for  false  accusation. 
On  the  other  hand  it  did  not  offer  the  same  advantages  in 
adducing  proof. 

(F)  Involuntary  loss  of  possession  was  therefore  sufficient  basis 
in  the  medieval  law  of  chattels  for  a  claim  against  third  persons 
for  the  redelivery  of  the  thing,  in  the  form  either  of  an  action  of 
"  Anefang  "  or  of  a  direct  action ;  and  the  rule  "  hand  must 
warrant  hand  "  was  in  so  far  excluded.  But  this  exclusion  could 
not  be  based  upon  the  rules  of  the  law  of  seisin.  For  these  rules 
could  not  have  given  the  injured  person  a  better  claim  to  things 
he  had  lost  than  to  those  he  had  bailed.  Indeed,  unlike  the  case 
of  land,  where  multiple  seisin  and,  particularly,  in  the  case  of 
loss  of  possession  an  ideal  seisin  were  recognized,  he  had  lost 
the  seisin  equally  in  the  two  cases,  and  thereby  lost  the  protection 
which  it  assured  him.  The  right  to  pursue  a  thing  possession  of 
which  he  had  lost  was  in  fact  inconsistent  with  the  "  2^*/^- 
licitcd"  idea  which  dominated  the  law  of  seisin;  "yet  despite  the 
absence  of  the  publicital  element  which  was  lost  with  the  seisin 
and  was  not  replaced  by  other  means,  there  was  granted,  here 
also,  an  action  against  the  third  party."  ^  The  cause  of  this 
peculiar  state  of  affairs  can  only  be  found,  as  Schultze  contends, 
in  the  breach  of  peace  that  was  made  by  the  disseisin,  and  which 
was  required  to  be  cured  not  only  by  a  penance  under  the  criminal 
law  but  also  under  the  private  law.  The  allowance  of  a  chattel 
action  in  case  of  wrongful  disseisin  was  inconsistent  with  the 
theory  of  the  law  of  seisin,  but  was  permitted  out  of  regard  for 
the  preservation  of  the  legal  order.  "  The  reaction  of  the  existing 
legal  order  against  the  breach  of  peace  involved  in  theft  was  so 
strong  among  the  primitive  Germans  that  the  law  not  only  gave 
the  victim  of  the  theft  a  delictual  action  under  the  private  law 
against  the  thief  and  his  associates  (concealers  of  stolen  goods  and 
persons  cognizant  of  the  theft),  but  also  a  claim  under  the  private 
law  against  every  third  person,  —  even  one  who  was  entirely 
innocent  and  free  from  any  imputation  of  negligence,  —  for  the 
redelivery  of  the  thing."  ^     And  though  all  cases  of  voluntary  de- 

1  Herbert  Meyer,  op.  cit.,  81. 

2  A.  Schultze,  "Geriifte  und  Marktkauf  ",  56. 

3  Ibid.,  58. 

415 


§  58]  THE    LAW    OF   THINGS  [BoOK   II 

livery  were  treated  alike  and  brought  within  the  rule  "  let  hand 
warrant  hand  ",  things  that  were  stolen  or  robbed,  or  which  were 
taken  from  the  owner's  hands  otherwise  than  by  theft  or  robbery, 
were  necessarily  treated  like  these,  inasmuch  as  they,  as  much  as 
the  latter,  were  distinguished  from  things  bailed  to  another 
by  the  involuntary  loss  of  possession.  The  fact  that  the  prin- 
ciple was  carried  no  further  in  the  medieval  law,  and  that  the 
"  Anefang  "  action,  in  particular,  was  not  extended  to  the  case  of 
a  wrongful  alienation  by  the  bailee,  was  directly  "  connected  with 
the  fact  that  Germanic  law,  unlike  the  Roman,  distinguished  con- 
cealment of  stolen  goods  from  larceny."  ^  In  this  case,  there- 
fore, the  precondition  of  theft  was  no  more  present  thaij  was  that 
of  involuntary  loss  of  possession. 

(II)  Exceptions  to  the  Theory  of  the  Older  Law.  —  The  clear 
and  simple  system  of  the  older  law  was  somewhat  confused,  even 
in  the  course  of  the  IMiddle  Ages,  by  blurring  the  difference  be- 
tween goods  bailed  and  goods  lost.  In  the  case  of  the  former  the 
limitations  upon  chattel  actions  were  at  first  perfectly  reconcilable 
with  practical  requirements,  and  the  unlimited  right  of  pursuit 
allowed  in  the  case  of  the  latter  accorded  with  sentiments  of  jus- 
tice, but  as  commerce  increasetl  there  came  about  a  restriction  of 
the  rule  "  hand  must  warrant  hand  "  and  an  increasing  protec- 
tion of  the  acquirer  of  stolen  things.  That  rule  involved,  in 
fact,  a  considerable  danger  for  the  owner  of  chattels.  For  in 
case  a  thing  was  lost  from  the  hand  of  a  bailee,  and  the  latter 
was  not  in  a  position  to  afford  damages,  the  owner  not  only  lost 
the  thing  itself  but  forfeited  also  its  value.  On  the  other  hand, 
the  absolute  duty  to  return  to  the  owner  a  thing  which  proved  to 
have  been  stolen  was  a  great  hardship  upon  third  persons ;  for 
they  also  were  forced  to  rely  entirely  upon  their  warrantor,  and  he 
might  well  be  propertyless.  Thus,  in  time  excei)tions  were  estab- 
lished which  mitigated  the  harshness  of  both  rules. 

(1)  Exceptions  to  the  Rule  "Hand  must  warrant  Hand." 
(A)  Under  the  town  law  of  Goslar  anyone  who  had  given  a  thing 
to  a  BAILEE  FOR  CUSTODY  was  permitted  to  follow  his  property 
against  third  persons  if  the  bailee  ("  Verwahrer  ")  alienated  it  or 
involuntarily  lost  it.  And  according  to  the  law  of  Augsburg,  if  a 
coxsKJXEE  sold  the  goods  in  payment  of  his  own  debt,  the  con- 
signor could  recover  them  from  the  third  party. 

(B)  When  artisans  sold  or  pledged  things  entrusted  to  them  as 
BAILEES  FOR  ALTERATIONS,  the  owners  of  sucli  things  had   the 
'  Brunner,  "Grundziige"  (5th  ed.),  206. 
416 


Chap.  VIII]  THE   LAW   OF  CHATTELS  [§  58 

right  in  many  cities,  —  e.g.  in  Liibeck,  Brunswick,  Dortmund, 
Munich, — to  require  their  return  from  the  third  person,  subject 
to  payment  of  the  wages  owed  to  the  laborer ;  a  power  which  is 
to  be  explained  as  a  consequence  of  the  right  possessed  by  handi- 
craftsmen, under  statutory  rights  of  pledge  or  detention,  to  pawn 
their  finished  work  for  the  amount  of  their  wage  {infra,  §  66). 

(C)  At  times  an  action  was  allowed  to  an  original  possessor 
against  a  present  possessor,  at  least  in  cases  where  a  fiduciary 
BAILEE,  the  person  from  whom  the  thing  had  been  stolen,  had  died 
or  had  avoided  the  suit.^ 

(D)  Finally,  a  few  legal  systems  (particularly  that  of  Liibeck 
but  also  those  of  Schleswig  and  of  Munich)  gave  an  action  to  the 
BAILOR  AGAINST  ANY  THIRD  PERSON  in  the  casc  of  any  bailed  prop- 
erty, —  and  this  so  early  as  the  end  of  the  IMiddle  Ages,  —  when  the 
plaintiff  was  ready  to  compensate  the  possessor  in  full  for  his  outlay 
for  the  thing.^  In  this  case,  therefore,  the  possessor  received  a 
claim  for  compensation.  There  was  involved  in  this  a  total 
abandonment  of  the  old  viewpoint  of  the  law :  the  rule  "  hand 
must  warrant  hand  "  was  abandoned  in  favor  of  the  first  possessor. 

(2)  Exceptions  to  the  Unlimited  Right  of  Pursuing  Lost  Chattels. 
(A)  As  regards  things  bought  in  open  ivlirket,  an  unrestricted 
claim  for  their  redelivery  was  transformed  in  the  later  Middle  Ages 
into  a  mere  claim  to  compensation  for  their  value,  although,  to  be 
sure,  only  here  and  there  within  the  regions  of  Germanic  law,  and 
not  so  generally  as  in  France.  In  other  words,  when  the  original 
possessor  of  a  thing,  who  had  been  involuntarily  deprived  of  seisin 
therein,  found  it  in  the  hand  of  a  third  person,  he  could  demand 
it  of  the  latter  only  upon  compensation  for  the  purchase  price  in 
case  such  third  person  proved  that  he  had  bought  it  in  market 
overt.  Here,  therefore,  it  was  not  the  manner  of  the  loss  but  the 
mode  of  acquisition  that  was  considered,  and  the  proof  of  a  market 
purchase  relieved  the  holder  not  merely,  as  formerly,  of  the  sus- 
picion of  theft  (supra,  p.  413),  but  also  of  the  unconditional 
obligation' of  redelivery.^  The  reason  for  this  special  treatment 
of  market  sales  is  doubtless  to  be  found  in  the  fact  that  men  saw 
in  a  transaction  entered  into  in  the  market,  —  as  in  the  public 
conclusion  of  any  agreement  whatever,  —  an  "  objective  "  or 
"  typical  "  evidence  of  innocence  and  honesty,  as  contrasted  with 
a  secret,  and  therefore  suspicious,  sale.     "  For  this  reason  such 

1  Sswp.  (W.),  101. 

2  "Lub.  Rocht",  II,  194  (of  1294). 

3  See  for  example  the  "Jiilicher  Landrecht"  (1537),  48.2. 

417 


§  5S]  THE    LAW    OF   THINGS  [BoOK   II 

public  purchase  took  the  place,  in  clearing  the  purchaser  of  a 
criminal  charge,  of  warrantors,  who  in  case  of  a  purchase  from 
unknown  parties  were  not  available ;  and  on  this  account  it  even 
acquired  importance  in  the  field  of  the  common  ("  zivilistische  ") 
law,  in  the  action  for  comi)ensation  ("Losungsanspruch").^  The 
inclination  to  increase  traffic  in  public  markets  as  much  as  possible, 
and  so  to  fa\'or  to  the  utmost  sales  in  open  market,  may  also  have 
contributed  to  the  rule,  as  Rietschel  has  remarked.^  It  was  de- 
sired to  protect  a  person  buying  in  the  market  against  the  danger 
of  being  compelled,  not  only  to  return  the  goods,  but  also  to  for- 
feit the  purchase  price.  Practical  considerations  triumphed,  here, 
over  the  strict  principle. 

(B)  According  to  the  law  of  the  Hansa  cities  things  from 
OVER  SEAS  could  uot  be  claimed  at  all,  and  stolen  things  in- 
troduced FROM  OTHER  JURISDICTIONS  BY  LAND  COuld  not  be 
claimed,  under  the  chattel  action  for  lost  seisin,  after  a  year  and 
a  day.^  This  rule  is  explainable  by  the  idea  of  municijjal  freedom 
and  the  town  peace;  it  has  the  appearance  of  being  "a  reflec- 
tion, in  a  way,  in  relation  to  chattels,  of  the  principle  '  city  air 
makes  free  '  ('  Luft  macht  frei  ')."  ^ 

(C)  Finally,  the  principles  of  Germanic  law  found  no  applica- 
tion whatever  in  the  case  of  one  entire  class  of  the  population, 
which  was  particularly  interested  in  trade,  —  namely  the  jews. 
On  the  contrary,  thanks  to  the  Jewry  privileges  they  received, 
their  own  Jewish  law  was  left  in  force,  as  for  them,  in  Germany 
as  in  most  Christian  countries.  And  that  law  was  much  more 
favorable  to  them.  According  to  the  Jewish  law  respecting  con- 
cealment of  stolen  goods,  which  was  deri\'ed  from  the  Talmud,  a 
Jew  could  always  demand  the  purchase  price  he  had  given  for  a 
thing  either  bought  or  received  in  pledge,  in  case  it  was  demanded 
from  him  ;  the  amount  of  the  price  he  established  by  his  oath. 
Only,  he  must  not  have  known  that  the  thing  was  stolen.  A 
mere  suspicion,  however,  or  acquisition  from  a  notorious  thief, 
or  for  a  price  which  would  raise  suspicion  of  theft,  did  not  preju- 
dice him.  In  time,  it  is  true,  this  privilege,  which  carried  with 
it  certain  hateful  implications,  was  restricted  under  the  influence 
of  the  law  of  seisin.  A  public  purchase  was  required,  a  purchase 
from  suspicious  or  unknown  persons  was  forbidden,  and  a  large 

J  A.  Schultze  in  Z\  R.  G.,  XXXI  (1910),  650. 

2  Z2.  R.  G.,  XXVII  (1906),  434. 

»  Hamb.  Stat,  of  1270,  VII.  9,  1. 

*  J.  V.  Gierke  in  Z.  Hnls.  R.,  LXX,  387. 

418 


Chap.  VIII]  THE    LAW    OF    CHATTELS  [§  58 

number  of  things  were  excluded  from  the  rule  on  account  of  the 
suspicion  of  theft  which  their  mere  possession  would  create,  such 
as  vessels  of  the  Church,  wet  or  bloody  garments,  agricultural  im- 
plements, tools,  weapons,  etc.  But  in  this  form  the  privilege  was 
maintained  throughout  the  Middle  Ages  and  even  long  there- 
after—  in  isolated  cases  even  into  the  1800  s  —  notwithstanding 
that  it  was  nominally  abolished,  first  within  certain  regions  and 
then,  in  the  1500  s,  for  the  entire  Empire.  On  the  other  hand, 
the  Jewry  privilege  was  extended  to  some  Christians ;  for  example, 
to  publicans,  goldsmiths,  frippers,  pawnbrokers,  and  everywhere 
and  especially  to  Lombards  and  traders  from  Cahors  in  Southern 
France,  —  foreign  merchants  who  were  everywhere  engaged,  along 
with  the  Jews,  in  money-changing  and  pawnbroking  on  a  small 
scale.  The  last  traces  of  the  application  of  the  Talmud  rules  to 
non-Jews  is  to  be  found  in  the  privileges  of  municipal  pawn- 
houses.^ 

(Ill)  The  Development  Since  the  Reception.  —  It  follows  from 
what  has  been  said  above  that  the  medieval  chattel  action,  like 
the  action  for  land,  was  neither  a  purely  possessory  nor  a  purely 
proprietary  action.  It  was  an  action  based  upon  seisin,  and  was 
available  to  every  holder  of  seisin ;  but  in  the  course  of  every 
suit  it  became  a  controversy  as  to  the  right  that  was  covered  by 
the  seisin.  Inasmuch,  however,  as  it  was  allowed,  in  theory,  only 
to  one  who  was  the  subject  of  a  physical  seisin  (for  the  exception 
in  the  case  of  stolen  chattels  represented  a  break  with  the  prin- 
ciples of  the  law  of  seisin),  it  had  a  narrower  field  of  application 
than  the  action  for  land,  which  was  also  allowed  to  the  holder  of 
an  ideal  seisin.  All  this  contrasted  sharply  with  the  Roman 
law.  For  this  distinguished  between  possessory  and  petitory 
remedies,  but  not  between  movable  and  immovable  things.  And 
yet,  as  already  remarked  (supra,  pp.  205  et  seq.),  the  Roman  law 
of  possession  was  nevertheless  received  into  Germany.  Despite 
this,  however,  the  Germanic  views  were  not  wholly  lost.  We 
have  already  remarked  that  the  possessory  remedies  that  were 
borrowed  from  the  Roman  law  had  been  given  a  subsidiary  peti- 
tory character  in  medieval  Italian  jurisprudence,  and  that  this 
secondary  character  was  even  somewhat  accentuated  in  the  de- 
velopment of  the  common  law.  What  has  there  been  said  (pp.  214 
et  seq.)  holds  true  in  the  law  of  chattels  in  the  same  manner  as  in 
the  law  of  land  :  "  possessorium  ordinarium  "  and  "  summariis- 
simum  "  were  by  no  means  confined  to  land.  The  Roman  pro- 
1  H.  Meyer,  "Entwertung:  uad  Eigentum",  268. 
419 


§  58]  THE    LAW   OF    THINGS  [BoOK   II 

prietary  action  ("  rei  vindicatio  ")  rested  upon  the  right  of  the 
plaintitl",  and  therefore  made  possible  a  vindication  of  his  owner- 
ship as  against  any  third  person  even  when  the  case  was  one  in- 
volving movables  ("  ubi  rem  meam  invenio,  ibi  vindico  ") ;  but 
though  it  therefore  had  nothing  in  common  with  the  Germanic 
chattel  action  in  principle,  it  was  nevertheless  received  in  its 
classical  purity  into  Germany,  and  later  found  entry  into  the 
common  law.  However,  aside  from  the  fact  that  there  existed 
side  by  side  with  it  the  common  law  possessory  remedies  just 
mentioned  which  had  marked  petitory  characteristics,  and  that 
the  common  law  actually  continued  to  make  frequent  use  of  the 
old  chattel  action  under  the  names  of  the  alien  "  vindicatio  " 
and  the  alien  action  of  larceny,  or  "  condictio  furtiva  ",  the  prin- 
ciples of  that  action  were  also  everywhere  maintained  in  the 
regional  legal  systems,  albeit  with  more  or  less  fundamental 
transformations  in  their  substance,  until  finally,  in  recent  years, 
they  again  became  the  common  law  of  Germany. 

(1)  A  number  of  the  regional  systems  clung  to  the  old  distinc- 
tion between  voluntary  and  involuntary  loss  of  possession.  This  was 
true  of  many  systems  of  town  law  (for  example  those  of  Lubeck, 
Hamburg,  and  Rostock),  many  Swiss  laws,  and,  among  the  great 
modern  codes,  the  Code  Civil,  the  Austrian  Code,  the  German 
General  Commercial  Code,  and  the  Zurich  Code. 

(A)  In  the  case  of  voluntary  loss  of  possession  the  principle 
"  let  hand  warrant  hand  "  was  maintained  in  these  systems ;  and 
along  with  it  the  traditional  limitations  of  the  chattel  action  to  a 
claim  based  exclusively  upon  a  right  against  a  bailee.^  At  the  same 
time,  however,  there  were  preserved  the  exceptions  already  recog- 
nized in  the  Middle  Ages  ;  such  as  that  respecting  things  alienated 
or  sold  by  artisans,  and  also,  generally,  that  as  to  things  stolen 
from  a  bailee.  The  Lubeck  law  maintained  a  peculiar  view, 
in  that  it  accorded  the  owner  at  least  a  right  to  repurchase  the 
thing  from  a  bona  fide  third  person  who  purchased  it.^  All  these 
systems  gave  full  effect  to  the  rule  "  hand  must  warrant  hand  " 
"  almost  always  "  only  when  such  third  person  had  acquired  the 
thing  bona  fide.  So,  in  particular,  the  Code  Civil,  the  Austrian 
Code,  and  the  General  Commercial  Code,  the  latter  two  of  which 
also  require  a  purchase  for  value.^ 

'  "Rev.  Luh.  R."  (ir)80),  III,  2,  1.  «  lUd.,  Ill,  2,  2. 

2  Austrian  Code,  §  367:  "An  action  allocinp:  ownorship  cannot  be 
sustainf'fl  ajjainst  the  bona  fide  possessor  of  a  chaltel  when  the  latter  can 
prove  either  that  he  acquired  tiie  same  at  public  auction  or  from  a  trades- 
man authorized  to  deal  in  such  articles,  or  acquired   it,  in  exchange  for 

420 


Chap.  VIII]  THE    LAW   OF   CHATTELS  [§  .58 

(B)  In  the  case  of  ixvoluntary  loss  of  possession  the  theo- 
retical availability  of  the  action  against  every  third  person  was  of 
course  preserved ;  but  here  too  the  Roman  law  had  agreed  with 
the  German  in  this  result.  This  agreement  was  qualified,  how- 
ever, by  the  fact  that  exceptions  to  the  principle  were  either  newly 
introduced  or  were  preserved  from  the  older  native  law.  In  the 
law  of  Hamburg  and  of  Liibeck,  for  example,  it  continued  to  be 
true  that  chattels  introduced  from  over  seas  were  absolutely  free 
from  pursuit.  Other  legal  systems  gave  the  person  who  had  ac- 
quired in  a  public  manner  goods  of  which  another  person  had  lost 
possession  a  right  to  have  them  redeemed.  This  was  true  of  the 
French  law,  and  of  a  considerable  number  of  the  Romanistic 
systems  of  Switzerland,  in  case  of  acquisition  at  public  auction, 
or  in  market  overt,  or  from  a  merchant  dealing  regularly  in  similar 
things. 

(2)  It  is  true  that  many  legal  systems  treated  wluntary  and 
involuntary  loss  of  possession  in  exactly  the  same  way,  either  under 
all  circumstances  or  as  regarded  certain  classes  of  chattels.  But 
only  a  few  of  the  older  statutes,  such  as  the  Reformations  of  Nu- 
remberg, Frankfort,  and  Liineburg,  adopted  the  pure  Roman 
principle  of  the  vindicatio.  For  the  most  part  this  was  subjected 
to  considerable  modifications. 

(A)  Thus,  in  the  first  place,  the  action  was  wholly  denied  against 
a  bona  fide  possessor,  no  matter  whether  the  loss  of  possession 
had  been  voluntary  or  involuntary,  whenever  the  question  involved 
was  one  of  money  or  of  bearer  paper,  of  bills  of  exchange  or 
other  forms  of  order  paper,  or  of  things  acquired  at  public  auction. 
This  rule  became  the  common  law  of  Germany  through  the  Bills 
of  Exchange  Act  ^  and  the  Commercial  Code ;  ^   according  to  the 

value,  from  a  person  to  whom  the  plaintiff  had  entrusted  it  for  use,  for 
preservation  or  for  any  other  purpose  whatever.  In  these  eases  title  is 
acquired  from  such  bona  fide  possessors,  and  the  former  owner  has  merely 
a  right  to  compensation  against  such  persons  as  were  responsible  to  him 
for  the  chattel." 

AHGB,  Art.  306:  "When  goods  ('Waaren')  or  other  chattels  have 
been  sold  and  delivered  by  a  merchant  in  the  course  of  his  business, 
the  bona  fide  purchaser  acquires  the  title  ('Eigentum'),  even  though  the 
seller  was  not  the  owner.  The  title  formerly  existing  is  extinguished.  .  .  . 
This  article  is  not  applicable  when  the  chattels  have  been  stolen  or 
lost." 

1  "  Wechselordnung  ",  Art.  74  :  "  The  holder  of  a  bill  of  exchange  whose 
title  is  legitimate  under  tlie  rules  of  Art.  30  can  be  required  to  surrender  it 
only  when  he  acquired  it  in  bad  faith,  or  is  chargeable  with  gross  negligence 
in  connection  with  his  acquisition  thereof." 

*  AHGB,  Art.  307:  "The  provisions  of  the  foregoing  article  are  appli- 
cable to  bearer  paper  even  when  it  is  transferred  .  .  .  otherwise  than 
by  a  merchant  in  course  of  trade,  in  case  such  paper  is  stolen  or  lost." 

421 


§  oS]  THE    LAW    OF   THINGS  [BoOK   II 

Austrian  law  it  also  applied  in  cases  of  acquisition  from  a  dealer 
entitled  to  trade  in  such  articles.^ 

(B)  The  Prussian  "  Landrecht  "  did  not  consider  the  manner  in 
which  possession  was  lost,  either  in  the  case  of  particular  chattels 
or  under  any  other  circumstances.  On  the  contrary,  it  attributed 
decisive  importance  solely  to  the  manner  in  wiucn  possession 
WAS  ACQUIRED.  If  a  present  possessor  had  acquired  possession 
in  good  faith  and  for  value  from  a  person  not  under  suspicion, 
any  claim  for  the  return  of  the  chattel  was  barred,  and  ordinarily 
only  a  claim  for  compensation  existed,  the  plaintiff  being  obliged 
to  make  good  what  was  paid  by  the  honest  acquirer  to  the  dis- 
honest vendor.^  In  special  cases,  however,  not  even  this  was 
permitted,  so  that  in  such  cases  a  present  possessor  in  good  faith 
was  safe  against  any  claim  whatever.  This  rule  prevailed  in  favor 
of  one  who  had  acquired  a  movable  either  from  the  public  treasury 
or  at  public  auction ;  also  in  favor  of  one  who  had  acquired  it  in 
the  shop  of  a  merchant  who  was  a  member  of  a  gild  (although 
the  general  right  to  compensation  existed  even  as  to  purchases 
at  fairs  or  in  open  market),  and,  finally,  in  favor  of  one  who  ac- 
quired gold  and  bearer  paper  in  good  faith.  The  Saxon  Code 
likewise  permitted  the  pursuit  of  stolen  chattels,  without  distinc- 
tion between  those  that  were  bailed  or  lost ;  but  in  certain  cases 
allowed  only  a  demand  for  compensation. 

(3)  Finally,  the  Civil  Code  has  brought  the  past  development  to 
an  end  in  such  a  way  as  again  to  give  general  authority  in  the  law 
of  chattels  to  the  old  idea  of  the  publicital  function  of  seisin.  It 
distinguishes  between  involuntary  and  voluntary  loss  of  possession 
in  the  manner  of  the  Germanic  law.  In  the  case  of  involuntary 
loss  of  possession  he  who  has  lost  possession  can,  in  theory,  de- 
mand the  redelivery  of  the  thing  from  any  acquirer  whatever 
(§  935,  1)  ;  "the  thing  whose  possession  has  been  lost  is  imme- 
diately subjected  to  a  levy  ('  Bann  ')  in  favor  of  its  owner,  and 
remains  under  this  even  in  the  hands  of  all  later  possessors."  ^ 
The  mode  of  acquisition  is  of  no  importance.  The  Civil  Code  no 
longer  recognizes  any  claim  for  compensation.     An  exception  is 

1  Soo  p.  420,  n.  2,  supra. 

2  Allg.  L.  H.,  I,  15,  §  2'):  "Whoii  Iliinq;s  whoso  possossion  has  been  lost 
by  thf'ir  rightful  owner  or  possessor  aro  boiiglit  from  a  i)orson  not  himself 
under  susi)ielon  by  a  eontrae.t  for  value,  the  buyer  must  indeed  .  .  . 
return  it,"  §  2(5;  "But  he  may,  in  turn,  require  eompensation  for  all  he  has 
given  or  done  in  payment  therefor."  Many  systems  of  Swiss  hiw  (Ziirieh, 
Sr-hafThausen,  Zuf^;,  Glarus,  St.  Gallen,  Tliurgau,  Appenzell  A.-Rh.) 
adopted  the  same  rule. 

3  Cosack,  "  Burgerliches  Recht ",  II  (5th  ed.),  126. 

422 


Chap.  VIII]  THE    LAW   OF   CHATTELS  '  [§  58 

made  only  in  the  case  of  money,  bearer  paper,  and  things  acquired 
at  pubhc  auction ;  in  these  cases  the  unrestricted  assignabihty  of 
the  thing,  and  the  special  pubhcity  of  the  manner  in  which  posses- 
sion is  acquired,  are  the  reasons  why  the  owner  cannot  follow  his 
property. 

On  the  other  hand,  in  the  case  of  a  voluntary  renunciation  of 
possession,  —  that  is,  in  the  case  of  .things  entrusted  to  another, 
—  the  old  rule  "  hand  must  warrant  hand  "  is  once  more  generally 
prevalent  to-day ;  though,  to  be  sure,  —  and  this  is  a  concession  to 
the  post-medieval  development,  —  only  upon  condition  that  the 
acquirer  acquired  possession  in  good  faith ;  the  requisites  of  good 
faith  being  differently  defined,  in  this  connection,  in  the  Civil 
and  Commercial  Codes  (BGB,  §  932;  HGB,  §  366).  The  rule 
*'  let  hand  warrant  hand  "  has  been  again  accepted  for  good 
reasons,  and  not  from  any  sense  of  historical  piety.  For  although 
it  does  involve  the  danger,  as  to  owners,  that  they  may  lose  a 
chattel  and  be  unable  to  enforce  against  their  fiduciary  the  claim 
for  damages  to  which  they  are  entitled,  nevertheless  the  principle 
serves  the  usual  interests  of  parties  better  than  the  Roman  prin- 
ciple of  the  vindicatio.  Whoever  has  voluntarily  given  up  posses- 
sion of  a  thing  has  himself  chosen  a  fiduciary,  and  he  must  be 
responsible  if  the  latter  prove  unworthy  of  confidence.  But  it  is 
different  in  cases  of  involuntary  loss  of  possession.  In  these  the 
reaction  against  injustice  once  led  to  the  allowance  of  an  un- 
limited right  of  pursuit ;  and  even  from  the  viewpoint  of  the 
present  day  it  seems  just  to  impose  upon  a  third  acquirer  of  the 
thing  an  unqualified  obligation  of  redelivery,  for  a  person  can 
select  his  vendor,  whereas  one  whose  chattel  is  stolen  does  not 
choose  the  thief.^ 

Finally,  the  Civil  Code  has  so  far  followed  the  old  law  of  seisin 
that  although  it  classifies  the  old  chattel  action  along  with  mere 
possessory  remedies  equally  applicable  to  all  things,  it  nevertheless 
allows  it  to  a  mere  possessor  in  accord  with  the  Germanic 
law,  and  does  not  base  it  as  in  the  Roman  law  exclusively 
upon  a  proprietary  right  in  the  claimant.  With  this  change  there 
was  again  adopted,  in  the  law  of  chattels  above  all,  the  old  pub- 
licital  function  of  seisin,  —  whereas  in  the  common  law  possession 
neither  gave  rise  to  a  presumption  of  right  nor  sufficed  as  a  basis 
for  a  petitory  action,  only  possession  in  good  faith  and  under 
color  of  title  ("  titulierter  gutglaubiger  Besitz  ")  having  been 
treated  as  a  real  right  in  the  nature  of  ownership  and  protected  by 
1  Cosack,  op.  cit.  (4th  ed.),  93. 
423 


§  58]  THE    LAW    OF   THINGS  [BoOK   II 

the  actio  publiciana.  There  is  here  involved,  in  the  first  place, 
the  presumption  recognized  in  §  lOOG  of  the  Civil  Code,  which 
goes  back  historically  to  the  rules  earlier  adopted  in  the  Bavarian, 
Prussian,  and  French  law :  in  the  case  of  money  and  of  bearer 
paper  there  exists  an  absolute,  and  in  the  case  of  other  things  of 
which  a  predecessor  was  not  dispossessed  against  his  will  a  re- 
buttable, presumption  in  favor  of  a  present  holder,  that  he  is  the 
owner ;  and  similar  prcsumjitions  in  favor  of  an  earlier  possessor 
that  he  was  the  owner  of  the  thing  during  the  continuance  of  his 
possession.  An  advantage  has  thus  been  conceded  to  a  possessor 
giving  evidence  in  court,  similar  to  that  once  enjoyed  by  the 
holder  of  seisin ;  in  particular,  because  he  can  rely  upon  this  pre- 
sumption of  ownership  in  a  proprietary  action  brought  against 
him  by  another  person  ("defensive"  effect  of  seisin).  In  the 
second  place,  §  1007  of  the  Code  gives  the  earlier  possessor,  — 
whether  an  owner,  usufructuary,  pledgee,  or  other  person  per- 
sonally entitled  to  the  possession  of  a  thing,  —  an  action  against 
a  present  possessor  for  the  redelivery  of  a  thing  formerly  in  the 
plaintiff's  possession.  This  right  exists,  in  the  case  of  things  pos- 
session of  which  was  involuntarily  lost,  against  every  acquirer; 
whereas  in  the  case  of  chattels  bailed,  and  under  all  circum- 
stances as  regards  money  and  bearer  paper,  such  a  right  exists 
only  when  the  acquirer  did  not  gain  possession  in  good  faith.  We 
meet  again  in  this  the  old  "  offensive  "  effect  of  seisin  in  a  new  form  ; 
but  this  time  in  the  law  of  chattels,  and  not  as  before  in  the  law 
of  land.  Moreover,  the  law  has  come  to  consider  the  manner  in 
which  tlie  third  person  has  acquired  possession,  —  a  viewpoint 
unknown  to  the  old  law. 

Tiie  Swiss  Civil  Code,  —  following  the  earlier  codification  of  the 
Swiss  law  of  obligation,  which  had  in  turn  followed  the  Zurich 
Code  (supra,  p.  420),  —  has  likewise  adopted  the  principle  "  hand 
warrant  hand  "  (§  933)  in  the  case  of  bailed  chattels,  while  per- 
mitting an  unrestricted  right  to  pursue  chattels  possession  of 
which  has  been  involuntarily  lost.  Gold  and  bearer  paper,  how- 
ever, are  excepted  from  the  latter  rule  (§  935).  Moreover,  in  the 
case  of  chattels  bought  at  auction  or  in  open  market,  or  from  a 
merchant  dealing  in  wares  of  the  same  kind,  there  is  allowed  against 
a  bona  Mv  acf[uirer  (§  934,  2)  merely  a  claim  for  compensation. 
And,  finally,  the  right  to  demand  the  redelivery  of  chattels  lost 
or  stolen  is  lost  with  the  expiration  of  five  years  (§  934)  ;  by 
which  provision  the  Swiss  Code  protects  more  adequately  than 
does  the  German  law  the  interest  of  strangers  who  acquire  chattels. 

424 


Chap.  VIII]  THE   LAW   OF   CHATTELS  [§  59 

Topic  2.    Ownership  of  Chattels 

§  59.  The  Origin  and  Content  of  Ownership  in  Chattels.  — 
(I)  Origin.  —  It  can  be  assumed  with  certainty  tliat  private 
ownership  of  chattels,  Hke  that  of  land,  was  only  gradually  de- 
veloped from  collective  ownership.  Herds  of  domestic  animals, 
implements  of  agricultural  and  household  labor,  were  subject  in 
the  earliest  times  to  the  ownership  of  hordes,  of  agrarian  groups, 
of  sibs,  and  of  families.  Private  ownership  developed  earlier, 
however,  in  the  case  of  chattels  than  in  that  of  land.  And  it  was 
earliest  realized  in  the  case  of  things  destined  for  personal  use, 
such  as  clothes  and  weapons ;  it  was  even  customary  to  lay  these 
in  the  grave  with  their  dead  owner,  which  could  therefore  not  be 
inherited.  There  was  later  developed  as  to  all  chattels  a  freely 
heritable  individual  ownership  which  displaced  the  older  collec- 
tive ("  kollektiv-  '')  ownership.  It  was  only  within  the  many 
forms  of  joint  ("  Gesamt-  ")  and  co-  ("  Mit-  ")  ownership  that 
the  latter  was  either  continued  or  newly  developed. 

(II)  Content.  —  Individual  ownership  of  chattels  overcame 
the  traces  of  its  collectivistie  origin  far  sooner  and  more  com- 
pletely than  did  ownership  of  land.  Even  at  an  early  day  it 
came  to  signify  unlimited  physical  control.  Indeed,  this  idea  was 
developed  for  the  first  time  in  relation  to  chattels ;  and  it  has  ever 
since  remained  essential  in  this  branch  of  the  law.  Since  a  very 
early  period,  and  equally  to-day,  this  fact  has,  in  Germanic  law, 
substantially  differentiated  ownership  of  chattels  from  owner- 
ship of  land,  which,  as  already  shown,  was  characterized  in  an 
especial  degree  by  limitations  that  have  remained  stamped  upon 
it  even  in  the  modern  law. 

At  the  same  time,  at  least  in  the  medieval  law  of  chattels,  there 
are  still  to  be  recognized  a  few  after-effects,  although  slight  ones, 
of  one-time  restrictions  due  to  rights  of  associational  groups  and 
of  the  family.  For  whereas,  generally  speaking,  an  owner  could 
freely  dispose  of  his  chattels,  already  in  the  IMiddle  Ages,  without 
being  bound  by  the  consent  of  the  heirs  ^  as  in  the  case  of  con- 
veyances of  land,  this  right  was  conceded  to  him  by  the  medieval 
sources  only  upon  condition  of  his  unimpaired  physical  capacity. 
For  —  so  it  was  reasoned  —  one  who  disposed  of  his  property 
when  on  his  sick-bed  or  death-bed,  by  provisions  that  were  pos- 
sibly resolved  upon  in  the  absence  of  full  mental  clarity,  and 
which  at  any  rate  exposed  him  to  no  deprivation  when  actually 

'  The  Ssp.,  I,  52,  §  1  expresses  this  principle  clearly. 
425 


§59]  THE    LAW    OF   THINGS  [BoOK   II 

made  shortly  before  death,  thereby  harmed  his  heirs  alone ;  and 
it  should  be  forbidden  him  to  do  that.  Hence  the  various  tests 
of  ])hysic'al  strenf]:th  which  were  prescribed,  in  the  naively  realistic 
fashion  of  the  Middle  Ages,  as  preconditions  to  dispositive  free- 
dom ;  ^  these  have  already  been  referred  to  in  another  connection 
(supra,  pp.  13,  70). 

There  belongs  here,  also,  the  rule  that  nobody  might  make  a 
gift  of  chattels  without  an  immediate  change  of  possession  ;  ^  be- 
cause equally  in  this  case  the  interest  of  the  heirs  might  be  all  too 
easily  injured  by  dispositions  that  could  not  be  sensible  to  the  alienor 
himself. 

Such  provisions  as  the  above,  and  equally  all  other  restrictions 
upon  dispositive  powers  over  chattels  under  the  private  law,  are 
unknown  in  the  modern  law. 

Topic  3.     Acquisition  of  Title  to  Chattels 

§  60.  Occupancy.  (I)  Occupancy  of  Ownerless  Chattels.  — 
Occupancy  ("  Aneignung ",  "  Okkupation  ")  is  a  taking  of 
possession  with  the  intent  of  acquiring  ownership ;  in  the  case 
of  ownerless  things  it  is  the  only  possible  mode  of  acquiring 
title.  It  was  at  once  the  oldest  and  for  a  long  time  the  most 
important  means  of  acquiring  ownership,  but  it  lost  importance 
as  ownerless  chattels  became  rarer.  In  the  most  primitive  stages 
of  civilization  man  gained  his  sustenance  by  occupancy  of  chattels, 
that  is  by  hunting.^  But  whereas  the  Roman  law  clung  to  the 
principle  that  ownerless  things  might  be  occupied  by  anyone  at 
will,  Germanic  law  early  restricted  this  free  right  of  occupancy. 
It  continued  to  recognize  an  unrestricted  right  of  occupancy  only 
in  the  case  of  certain  things,  such  as  wild  animals  that  were  not 
objects  of  chase  (e.g.  rabbits),  birds  ^  (particularly  doves),  products 
of  the  sea,  berries,  and  things  which  were  absolutely  abandoned 
by  their  owner.  Aside  from  this,  however,  it  created  numerous 
special  and  exclusive  rights  of  occupancy  that  gave  the  power  of 
acquiring  title  by  occupancy  to  certain  privileged  persons  only,  — 
either  to  landowners  or,  in  the  form  of  regalities,  to  land-lords 
and  Territorial  princes  (.wpra,  pp.  268  et  seq.),  or  even  to  other 
persons,  such  as  a  first  discoverer.     This  was  true  particularly  of 

>  Note  the  continuation  in  the  Ssp     T   .52    §  2 

2  Troslar.  Stat.,  SO,  Z8-in.  Tliis  was  expressed  bv  the  French  law  in  the 
rule,     donner  et  retenir  ne  vaut"  (one  cannot  both  frive  and  retain). 

3  V.  Amira,  "Reeht",  125.  '  Swsp.  (G),  198,  §  3. 

426 


Chap.  VIII]  THE  LAW  of  chattels  [§  60 

wild  animals  subject  to  unrestricted  rights  of  chase,  and  of  river 
fish ;  only  persons  entitled  to  rights  of  venery  and  piscary  could 
acquire  property  in  these  {supra,  pp.  274  et  seq.,  pp.  286  et  seq.). 
This  idea  has  been  preserved  in  the  modern  law.  For  although 
the  Civil  Code  subjects  ownerless  things,  generally  speaking,  to 
rights  of  free  occupancy,  there  are  excepted  from  this  those 
things  with  respect  to  which  the  statutes  of  the  individual  States 
shall  recognize  exclusive  rights  of  occupancy;  and  among  such 
there  are  everywhere  included  to-day  rights  of  hunting  and  of 
fishery,  and  in  some  localities  others  also,  such  as  the  regalities  of 
amber  and  of  treasure  trove.  A  person  without  rights  of  occu- 
pancy who  hunts  or  fishes  acquires,  in  any  event,  no  ownership 
for  himself,  as  is  expressly  provided  in  the  Civil  Code  (§  958,  2), 
which  is  here  in  entire  agreement  with  the  rule  of  the  older  Ger- 
manic law.  The  question  whether  wild  game  killed  by  a  poacher 
becomes  the  property  of  the  person  entitled  to  the  right  of  chase, 
or  whether  the  game  so  killed  remains  ownerless,  was  always  a  dis- 
puted one.  The  Civil  Code  has  decided  it  in  the  sense  last  men- 
tioned, although  the  opposite  view  is  perhaps  more  consistent  with 
Germanic  law.^ 

(II)  The  Law  of  Apiculture.  —  Special  legal  rules  existed  from 
the  earliest  times  respecting  the  occupancy  of  bees.  For  inasmuch 
as  these  cannot  be  made  domestic  animals  even  by  apiculture,^ 
but,  as  the  Saxon  town-law  expresses  it,  are  "  wild  worms  ",^  not 
only  wild  swarms  but  also  those  which  have  left  a  hive  were  sub- 
ject to  occupancy  by  any  person.  This  was  different  from  the 
rule  respecting  tame  domesticated  animals,  ownership  in  which, 
under  the  German  as  under  the  Roman  law,  is  lost  only  when  the 
animal  abandons  the  habit  of  resorting  to  its  appointed  place 
(BGB,  §  960,  3 ;  similar  provision  in  the  Swiss  Civil  Code,  §  719). 
The  Germanic  folk-laws  already  permitted  anyone  who  found  a 
bee  swarm  in  a  hollow  tree  to  reduce  it  to  his  ownership  ;  namely, 
by  marking  the  tree  in  some  way.  True,  there  is  also  found  in 
them  the  provision  that  the  owner  may  protect  his  property  by 
immediate  pursuit  of  the  swarm :  according  to  the  Bavarian 
law  he  might  attempt  to  drive  the  bees  from  the  tree  of  the  other 
landholder  in  the  presence  of  the  latter,  and  only  those  remaining 
were  lost  to  him.'*  In  later  times,  also,  many  legal  sources,  — 
for  example  the  Schwabenspiegel,  —  ^  retained  this  right  of  the 

1  Gierke,  "Privatrecht ",  II,  529.         2  Gierl^e,  op.  cit.,  530. 
«  "Sachs.  Weichb.",  121.  "  "Lex  Baiwariorum",  21,  8. 

B  Swsp.  (G.),  305. 

427 


§  60]  THE    LAW    OF   THINGS  [BooK   II 

owner  to  pursue  his  bees ;  whereas  others  held,  with  the  Roman 
law,  that  the  ownership  was  lost  as  soon  as  the  swarm  had  passed 
bo\ond  the  owner's  sight.  Definite  periods  were  set  for  pursuit, 
at  the  longest  two  or  three  days.  Moreover  bees  were  often  totally 
excepted  from  the  right  of  occupancy,  perhaps  because  of  the  in- 
creasing demarcation  of  lands.  First  of  all  a  limitation  was  im- 
posed to  the  effect  that  the  finder  must  return  a  part  of  the  swarm 
to  the  landowner  or  the  land-lord.  In  more  modern  times  the 
right  of  occupancy  was  reser\ed  to  the  landowner  exclusiA'cly ; 
this  was  already  true  of  the  Saxon  town  law  (supro,  p.  427,  n.  3),  and 
likewise,  at  a  still  later  day,  of  the  Prussian  and  the  Austrian 
law.  The  Civil  Code  has  reestablished  entire  freedom  of  occu- 
pancy, and  has  regulated  the  law  of  apiculture  by  detailed  provi- 
sions (§§  961-964)  in  complete  agreement  with  Germanic  law, 
starting  with  the  principle  that  the  swarm  becomes  ownerless 
upon  leaving  the  hive  unless  the  owner  immediately  pursues,  or  if 
he  abandons  pursuit.  According  to  the  Swiss  Civil  Code  (§§  700, 
725,  2),  on  the  other  hand,  a  swarm  that  leaves  the  hWe  does  not 
become  ownerless ;  on  the  contrary,  the  owner  can  retake  the  bees 
at  any  time,  ownership  being  lost  only  when  the  owner  renounces 
his  rights  or  when  the  swarm  flies  into  a  hive  occupied  by  other 
bees,  in  which  last  case  the  owner  of  such  hive  acquires  owner- 
ship in  the  bees. 

(Ill)  Things  Found  (Ordinary  Trove).  (1)  Tlie  Older  Law. — 
The  problem  of  regulating  the  acquisition  of  title  in  trove  was 
approached  by  the  medieval  law  from  a  viewpoint  opposite  that 
of  the  Roman  law ;  and  this  it  has  always  consistently  retained. 
For  whereas  under  the  Roman  law  chattels  found  were  not  re- 
garded as  ownerless,  and  were  therefore  incapable  of  occupancy, 
according  to  Germanic  law  from  the  earliest  times  the  finder  was 
allowed  to  acquire  property  in  them.  Indeed,  in  accord  with  the 
sensuous  character  of  the  old  law  there  was  required  as  essential 
to  becoming  a  finder  a  formal  act  by  which  possession  was  taken, 
—  for  example,  in  the  Lombard  law  the  raising  of  the  chattel 
higher  than  the  knees.  The  acquisition  of  ownership,  however, 
did  not  follow  without  further  formalities ;  for  since  the  finder 
might  easily  be  exposed  to  a  suspicion  of  theft,  even  the  oldest 
law  required  some  special  act  on  the  part  of  the  finder  calculated 
to  repel  any  suspicion.  He  was  bound,  under  penalties,  publicly 
to  expose  the  chattel  he  had  found,  or  to  deliver  it  to  the  public 
autliorities  that  they  might  issue  a  citation  to  claimants.  With 
this  citation  there  early  became  associated  the  principle  of  nega- 

428 


CkaP.  VIII]  THE    LAW    OF    CHATTELS  [§  60 

tive  prescription  ("  Verschweigung  ")  :  if  the  owner  did  not  make 
himself  known  within  a  certain  time  (usually  six  weeks)  he  thereby 
lost  his  ownership.  In  such  a  case  the  title  of  the  chattel  originally 
passed  to  the  public  authorities,  —  the  king,  the  lord  of  the  land 
or  of  the  court,  the  church,  or  the  commune.  So  long  as  this 
principle  was  recognized  it  was  permissible  to  speak  of  a  regality 
in  trove  ("  Fundregal  ").  As  regards  the  most  usual  case  of 
finding,  namely  that  of  estrays  ("  mulaveh  ",  "  ]\Iaulvieh  ", 
"  Irrgang  "),  this  rule  was  still  widespread  in  the  sources  of  the 
Middle  Ages.^  On  the  other  hand,  other  legal  systems  provided 
for  a  division  between  the  finder  and  the  government ;  ^  and  some 
gave  the  whole  to  the  finder.  The  finder  was  bound  to  keep  the 
chattel  he  found  for  some  time,  in  order  that  the  owner  might 
make  himself  known.  This  might  easily  result  in  costs  to  the 
finder,  particularly  in  the  case  of  strayed  cattle,  and  consequently 
he  had  a  claim  for  "  cost-money  " ;  which  either  the  owner  or  the 
government,  according  as  the  chattel  was  delivered  to  one  or  the 
other,  was  bound  to  make  good  to  him.  The  idea  of  the  finder's- 
reward  ("  Fundlohn  ")  seems  to  have  developed  from  this  cost- 
money.  Such  rewards  were  first  assured  to  the  finder  in  the 
later  Middle  Ages,  the  Schwabenspiegel,  for  example,  having 
still  left  his  reward  to  the  discretion  of  the  public  authorities. 

(2)  In  modern  times  the  traditional  legal  rules  were  generally 
maintained  in  the  regional  legal  systems ;  notably  the  duty  of  the 
finder  to  give  immediate  notice  of  the  finding,  and  to  preserve  the 
chattel.  He  could  free  himself  from  the  latter  obligation,  how- 
ever, by  delivering  the  chattel  to  the  police.  There  were  also  re- 
tained the  citation  issuable  by  the  government  or  by  the  finder 
himself,  and  the  reward  that  was  given  the  finder  in  case  the  owner 
appeared  and  the  chattel  must  be  given  or  returned  to  him.  The 
reward  was  adjusted  to  the  value  of  the  chattel  found.  The  new 
Civil  Code  has  adopted  the  old  law  as  to  these  matters.  If  no 
owner  appeared,  then  according  to  the  earlier  modern  statutes 
the  finder  himself  became  entitled  to  the  ownership,  but  no  longer 
the  government  or  other  superior  authorities  save  exceptionally, 
when  a  certain  fraction  of  the  chattel's  value  was  confiscated  for 
public  purposes,  —  for  example  under  the  Prussian  "  Landrecht  ", 
if  the  value  exceeded  one  hundred  Taler,  one-half  of  the  excess  for 
local  charities.  The  present  Civil  Code  has  done  away  with  such 
exceptions. 

'  Dortmund  arbitral  decision  ("Schiedssprueh")  of  1240,  cited  by 
H.  Meyer,  "Entwerung",  IGl.  2  ggp.,  H,  37,  §  1. 

429 


§  60]  THE    LAW   OF   THINGS  [Book  II 

Some  legal  systems  —  for  example  the  Austrian  Code  and  the 
Code  Civil  —  gave  the  finder  power  to  acquire  title  to  the  chattel, 
as  a  result  of  the  owner's  self-preclusion  by  silence,  by  using  it 
as  a  bona  fide  possessor  for  the  period  of  negative  prescription ; 
a  proprietary  action  against  the  tinder  being  barred  after  the 
exjMration  of  the  usual  three  years.  Other  legal  systems,  on  the 
other  hand,  treated  the  ownership  as  passing  to  the  finder  imme- 
diately upon  the  expiration  of  the  j)eriod  within  which  the  owner 
was  permitted  by  statute  to  appear  and  claim  it ;  for  example,  in 
the  common  Saxon  law  and  (following  that)  the  Saxon  Code, 
after  one  year.  These  principles  were  analogous  to  those  of  the 
older  German  law.  The  Prussian  "  Landrecht  "  required  a  judicial 
adjudication  ("  Zuschlag  ")  for  the  acquisition  of  title;  but  this 
has  disappeared  since  the  imperial  Code  of  Civil  Procedure  came 
into  effect,  the  title  passing  immediately,  since  its  adoption,  even 
under  the  Prussian  law.  The  present  Civil  Code  has  likewise 
conformed  to  this  rule,  permitting  the  acquisition  of  title  imme- 
diately upon  the  expiration  of  the  statutory  period  of  one  year 
(§  973).  This  period,  however,  no  longer  runs,  as  in  the  older  Ger- 
man and  in  the  Prussian  law,  from  the  moment  a  public  citation 
is  issued,  but  is  begun  in  case  of  valuable  trove  by  notice  to  the 
police,  and  in  the  case  of  trove  of  slight  value  (namely  that  of  less 
value  than  three  marks),  by  the  finding  itself.  The  Swiss  Civil 
Code  (§  722)  is  to  the  same  effect ;  but  it  extends  the  period  to 
five  years. 

(IV)  Treasure  Trove. ^  —  Just  as  there  existed  quite  commonly 
in  the  Middle  Ages  in  the  form  of  a  regality  an  exclusive  right  of 
appropriating  ordinary  chattels  found  (ordinary  trove),  so  also 
this  existed  in  the  case  of  treasure  trove  ("  Schatz  ")  ;  that  is, 
things  that  had  once  been  objects  of  ownership  but  which  had 
lost  their  owners  owing  to  long  concealment.  According  to  an 
attractive  presumption,-'  we  must  believe  that  German  law  indi- 
cated by  the  word  "  Schatz  "  treasures  buried  in  graves,  the 
valuable  things  that  were  laid  therein  in  heathen  times  with  dead 
persons;  the  "mound-silver"  ("  Hiigel-silber  ")  as  the  Danish 
legal  sources  call  them.     The  e;cistence  of  a  regality  of  treasure 

'  Zeumer,  "Der  l)ogn'abene  Snhatz  im  Sachsenspiegel",  I,  35,  Inst.  ost. 
G.  F.,  XXII  (1901),  42()-4'42;  Eck.stein,  "Das  Schatz-  und  Funclrefral  und 
seine  Entwinklunf?  in  don  (hnitsfhcn  licclilen",  in  same,  XXXI  (1910), 
193-244.     See  also  the  dissertation  of  E.  Schmidl  eitedon  p.  293,  supra. 

2  K.  Lehmann,  "Sachsenspiegel,  1,3.'"),  und  dasaltnordischeSchatzregal", 
in  Z.  deut.  Phil.,  XXXIX  (1907),  273-281;  "ClrabhiiRcl  und  Konipfs- 
hugel  in  nordiseher  Heldenzeit",  in  same,  XLII  (1910),  1-15,  XLIV 
(1912),  78-79. 

430 


Chap.  VIII]  THE  LAW  OF  chattels  [§  60 

trove  in  Germany,  —  which  is  similarly  attested  in  the  Scandina- 
vian as  well  as  in  the  Anglo-Xorman  and  French  law  of  the  ]\Iiddle 
Ages,  —  is  shown  beyond  all  doubt  by  certain  documents  of 
Henry  V  and  Konrad  III,  and  especially  by  a  much  discussed 
passage  of  the  Sachsenspiegel,^  the  bearing  of  which  upon  treasure 
trove  it  has  been  mistakenly  attempted  to  deny.  ]\Ioreover,  the 
matter  is  attested  also  by  proofs  of  a  later  time.  The  regality 
was  maintained  in  full  extent  only  exceptionally  (until  recent  times 
in  Schleswig  and  Schwarzburg-Rudolstadt,  this  condition  being 
preserved  by  the  Introductory  Act  to  the  present  Civil  Code). 
A  few  of  the  modern  codes  gave  effect  to  the  old  view  to  the 
extent  of  assigning  at  least  a  definite  part  of  the  tro^•e  to  the 
fisc;  as  did  the  Austrian  Code  and  the  Prussian  Landrecht,  for 
example,  at  least  in  cases  where  the  trove  had  been  dug  up  from 
the  ground.  Most  legal  systems,  however,  —  including  the  Prus- 
sian "  Landrecht  ",  the  Austrian  and  Saxon  Codes,  and  the  Code 
Civil,  —  adhered  to  the  Roman  principles,  which  were  substan- 
tially adopted  by  the  Schwabenspiegel  -  and  which  also  acquired 
a  common  law  authority.  According  to  those  rules,  in  case  the 
finder  had  not  made  intentional  search,  or  employed  prohibited 
devices,  or  otherwise  laid  himself  open  to  punishment,  the  trove 
belonged  half  and  half  to  the  finder  and  the  landowner ;  in  case 
the  landowner  himself  discovered  the  treasure,  the  whole  was 
assigned  to  him.  At  the  same  time,  in  the  case  of  ordinary  trove 
a  citation  procedure  was  frequently  prescribed.  The  present 
Civil  Code  has  followed  the  Roman  law  in  all  cases,  and  therefore 
always  divides  the  treasure  between  the  finder  and  the  owner  of 
the  land  or  other  thing  in  which  it  is  found  (§  984),  treating  the 
ownership  of  the  treasure  as  passing  with  the  taking  of  possession 
upon  the  ground  of  the  discovery,  and  without  further  require- 
ments. The  rule  of  the  Swiss  Civil  Code  is  entirely  different. 
According  to  it,  the  finding  of  the  treasure  confers  title  thereto 
upon  the  owner  of  the  thing  in  which  it  is  found,  and  this  through 
the  mere  finding,  so  that  the  case  becomes  one  of  natural  accession 
("  Anwachsung  ")  ;  the  finder  has  merely  a  contractual  claim  for 
proper  compensation  (§  723).  jMoreover,  the  Swiss  Code  has 
formulated,  for  the  first  time,  special  provisions  concerning  the 
finding  of  ownerless  natural  bodies  ("  Xaturkorper  "),  or  an- 
tiquities of  more  than  trivial  scientific  value ;  they  become  the 
property  of  the  canton  within  whose  boundaries  they  are  found 
(§  724). 

1  Ssp.,  I,  35,  §  1.  2  swsp.  (G),  285. 

431 


§  60]  THE    LAW    OF   THINGS  [BoOK   II 

(V)  Acquisition  of  Ownership  in  Wreck  ("  gestrandete  Sa- 
chen  ").^  —  From  the  one-time  "  rightlessiiess  "  or  outlawry  of 
aliens  the  medieval  law  deduced  the  cruel  rule  that  when  a  ship 
stranded  on  the  sea  coast  or  in  a  river  (the  Rhine  was  usually  in- 
volved), that  is  touched  the  land,  the  dwellers  on  the  shore  had  a 
so-called  "  strandage  right  "  ("  Strandrecht  "),  or  in  the  case  of 
rivers  a  "  groundage  "  ("  Grundruhrrecht  ")  right,  to  the  wreck- 
age ;  that  is,  they  had  the  right  to  appropriate  the  stranded  chattels, 
and  this  originally  involved  even  an  enslavement  of  the  ship- 
wrecked persons  {supra,  p.  77).  Rulers  attempted  at  an  early 
date  to  set  limits  to  these  rights  of  occupancy,  which  were  a  dis- 
grace to  civilization  and  which  made  impossible  any  close  rela- 
tions of  commerce.  Thus,  for  example.  Emperor  Frederick  II  in 
1220  directed  against  it  an  imperial  statute  that  was  received 
into  the  Corpus  luris  as  an  authentic  "  Xavigia  " ;  and  this  ex- 
ample was  followed  by  kings  William  of  Holland,  Ludwig  of 
Bavaria,  and  Karl  IV.  However,  the  Territorial  rulers  them- 
selves later  asserted  claims  to  all  wreck  washed  upon  the  shore, 
inasmuch  as  they  regarded  the  sea-shore  as  their  property,  so  that 
there  was  developed,  here  also,  a  regality,  which  in  turn  was  con- 
veyed by  the  kings  to  the  Territorial  princes;  and  consequently 
such  statutory  prohibitions  could  have  but  little  effect.  The 
right  of  "  groundage  ",  it  is  true,  disappeared  at  an  early  date, 
although  not  on  the  Rhine  and  the  ]\Iain.  There,  and  on  the  sea- 
coast,  grants  of  the  regality  long  remained  a  source  of  constant 
and  violent  disputes  between  their  privileged  holders  and  the 
coast  or  riparian  dwellers.  The  commercial  cities,  particularly, 
had  an  urgent  interest  in  preventing  the  exercise  of  the  right  of 
wreck  by  the  Territorial  rulers,  —  Rostock,  for  example,  caused  a 
Territorial  bailiff  to  be  hung  as  a  robber  so  late  as  1485  because 
he  had  seized  the  goods  of  a  stranded  vessel  for  his  lord.  Even 
the  prohibition  of  the  Carolina  -  had  no  deep-reaching  effect :  the 
duke  of  Mecklenburg,  for  example,  declared  that  the  emperor 
had  no  power  to  abolish  the  regalities  of  the  princes.  It  was 
only  in  the  1700  s  that  the  right  of  wreck  disappeared  as  respected 
the  sea-coast ;  the  prayers  of  tlie  church  customary  "  for  a  blessed 
wreck  "  were  done  away  with  in  ^Mecklenburg  only  in  1777.  In 
place  of  wreck  a  right  to  salvage  was  recognized  in  favor  of  salvors, 
In  this  manner  there  was  developed  the  modern  "  Strandrecht  ". 
which  has  been  unified  for  Germany  by  the  Salvage  Ordinance 

'  K.  Lfhinnnn,  art.  "Rcrcfuntj"  in  ffnnp's  "Roalloxikon",  I  (1912),  2.'j9. 
2  Peinliche  Gcrichtsorduuug  of  Charles  V,  Art.  218. 

432 


Chap.  VIII]  THE    LAW    OF    CHATTELS  [§  61 

("  Strandungsordnung  ")  of  May  17,  1874.  A  citation  procedure 
is  opened,  and  if  the  owner  thereupon  appears  the  property  is 
deHvered  to  him  upon  his  satisfying  the  salvage  claim.  If  no 
owner  appears,  then  such  wreck,  —  wreck  in  the  technical  sense 
of  "  Strandgut  "  or  ''  Seeauswurf  ",  i.e.  things  which  are  dug 
out  of  the  strand  or  thrown  upon  it  by  the  sea  ("  strandtriftiges 
Gut "),  —  falls  to  the  public  treasury  after  deduction  of  the 
salvage  money  payable  to  the  salvors.  Buried  chattels  that  are 
dug  out  of  the  sea-bottom,  and  goods  that  are  washed  ashore, 
that  is  dug  out  by  the  sea  itself,  fall  in  their  entirety  to  the 
salvor.  Here  again,  therefore,  exactly  as  in  the  case  of  trove, 
ownership  results  from  occupancy. 

(VI)  Booty  of  War.  —  In  the  Middle  Ages  acquisition  of 
ownership  by  private  capture  in  feud  or  war  played  an  im- 
portant role,  and  it  was  variously  and  exhaustively  regulated.  In 
modern  times  this  right  of  capture  ("  Beuterecht ",  "  booty- 
right  ")  has  been  very  greatly  restricted  by  international  law ;  in 
particular,  it  has  been  entirely  abolished  as  against  enemies  not 
belonging  to  a-  hostile  army.  The  right  of  private  capture  at 
sea,  also,  was  totalh'  abolished  by  the  declaration  of  Paris,  of 
April  15,  1856.  In  the  present  Civil  Code  private  rights  of 
capture  are  not  even  mentioned. 

§  61.  Accession  of  Fixtures  and  Specification.  (I)  Accession 
of  Fixtures  ("  Verbindung  ").  —  The  Roman  law,  and  likewise 
the  modern  law  generally,  including  the  present  Civil  Code  (§  946), 
start  with  the  principle  that  a  chattel  affixed  to  land  becomes  an 
essential  part  thereof,  and  consequently  passes  without  further 
act  into  the  ownership  of  the  landowner ;  in  particular,  this  prin- 
ciple holds  for  buildings  erected  upon  the  land  of  another  ("  super- 
ficies solo  cedit  ").  The  medieval  law  took  a  different  position 
{supra,  pp.  173  et  seq.).  Though  houses  were  originally  movable 
in  fact,  they  did  not  become  part  of  the  land.  Consequently, 
whoever  built  upon  another's  land  was  bound  to  remove  his  house 
when  he  had  built  without  right  to  do  so,  but  he  remained  the 
owner  if  he  had  built  it  of  his  own  materials.  Only  after  the 
Reception  was  the  concept  of  a  special  property  in  the  building 
abandoned  and  the  Roman  principle  recognized  ;  to  which  result 
the  increasing  use  of  stone  structures  must  certainly  have  con- 
tributed. Nevertheless  the  old  Germanic  conception  was  still  so 
far  recognized  in  the  Prussian  "  Landrecht  "  and  in  the  Code  Civil 
that  the  former  allowed  a  landowner  to  acquire  title  to  a  house 
erected  on  his  land  only  after  he  should  have  decided  to  appro- 

433 


§01]  THE    LAW    OF   THINGS  [BoOK   II 

priate  it,  but  iiot  by  its  mere  erection ;  and  the  Code  Civil  per- 
mitted rebuttal  of  the  presumption  that  all  buildings  are  erected 
by  the  landowner.  The  present  Civil  Code  has  also  adopted 
the  Roman  principle  of  accession  ("  Akzession  "),  although  recog- 
nizing (§  95)  as  possible  objects  of  special  rights  buildings  erected 
upon  the  land  of  strangers,  at  least  those  erected  for  temporary 
purposes  or  upon  the  strength  of  a  real  right.  The  rule  that  he 
who  builds  upon  another's  land  acquires  ownership  for  himself 
in  the  land  built  upon  (the  exact  opposite  of  the  Roman  principle) 
was  unknown  to  the  medieval  law,  but  prevailed  in  the  law  of 
Wiirttemberg,  the  Prussian  "  Landrecht  ",  the  Austrian  Code,  and 
several  of  the  S\A'iss  codes.  It  has  been  adopted  in  a  somewhat 
altered  form  by  the  present  Civil  Code,  and  the  Swiss  Civil  Code 
has  also  retained  it  {supra,  p.  267). 

(II)  Specification  ("  Verarbeitung  "). — When  a  person  pre- 
pared a  new  object  from  material  belonging  to  another,  the  older 
Germanic  law  seems  to  have  ascribed  title  to  the  owner  of  the 
material.  At  least  this  is  the  rule  laid  down  in  the  Schwaben- 
spiegel,^  which  passed  from  that  into  the  law  of  Kulm.  At  the 
same  time  the  Schwabenspiegcl  (W,  390)  gave  the  owner  of  the 
material  a  claim  for  damages  against  the  improver  ("  Verarbeiter  ") 
in  case  he  did  not  desire  to  take  the  object  made,  because  use- 
less to  him.  No  other  provisions  are  to  be  found  in  the  older 
sources.  As  a  result  of  the  Reception  the  opposite  view  of  the 
Roman  law  attained  supremacy,  and  this  has  been  adopted  in 
the  present  Civil  Code  (§  950)  as  well  as  in  the  Swiss  Civil  Code. 
The  latter  permits  the  judge  to  make  an  exception  to  the  principle 
of  increased  value  in  case  the  party  using  the  material  of  another 
acted  in  bad  faith  (§  726). 

§  62.  Appropriation  of  Fruits  {"  Fruchterwerb  ").  (T)  The 
Older  Law.  —  The  medieval  law  started  from  the  idea  that, 
like  liouscs,  meadows,  and  woodlands,  fruit-bearing  things 
were  not  ])arts  of  the  soil  in  which  they  grew  but  independent 
things,  which  could  enjoy  independent  juristic  existence.  Never- 
theless, as  has  been  already  mentioned  (supra,  p.  175),  fruits  of 
the  field,  tlie  product  of  the  seed  as  distinguished  from  the  soil, 
were  expressly  conceived  of  and  designatcfl  as  movable  property.^ 
There  was  no  necessity  for  the  older  Germanic  law  to  subject 
such  fruits  to  the  right  of  the  landowner  under  all  circumstances. 
On  the  contrary  it  permitted  them  to  become  the  ])roperty  of  the 
person  who  had  cultivated  them.  He  who  had  expended  the 
»  Swsp.  (L),  37.3.  2  Erfurt  Statute  of  1306. 

434 


Chap.  VIII]  THE   LAW   OF   CHATTELS  [§  62 

labor  necessary  for  their  creation  acquired  property  in  them  as 
"earned"  ("  verdientes ")  property;  the  rule  was  applied, 
"  whoever  sows,  reaps."  As  to  the  moment  that  was  decisive  for 
the  acquisition  of  title,  namely  that  when  the  labor  of  cultivation 
was  completed,  it  differed,  of  course,  in  the  case  of  different  prod- 
ucts of  the  soil.  In  the  case  of  grain  it  was  considered  necessary 
that  this  be  harvested  and  the  land  again  harrowed  ;  whence  the 
maxim,  "  if  the  land  has  been  harrowed  the  grain  is  harvested." 
Garden  fruits  must  have  been  sown  and  the  garden  raked ;  in 
the  case  of  tree  fruits  and  wine  the  care  of  the  spring  season  must 
have  been  ended  ;  in  the  case  of  ground-rents  and  tithes  the  Saint's 
Day  was  decisive  upon  which  they  were  rendered. ^  But  it  was  a 
precondition  that  the  person  whose  rights  were  in  question  must 
have  cultivated  the  land  in  good  faith  or  in  the  exercise  of  a  usu- 
fructuary right  to  which  he  was  entitled.^  These  contradictions 
were  especially  apparent  in  the  following  cases  :  the  allodial  heir, 
who  was  bound  to  deliver  the  fief  to  the  lord  of  the  fief  or  his  suc- 
cessor, took  the  fruits  "  earned  "  by  his  labor.  So,  also,  a  hus- 
band who  lost  the  usufruct  of  his  wife's  lands  upon  her  death, 
and  his  heirs  if  compelled  to  hand  over  his  lands  in  dower  ("  Leib- 
zucht  ")  to  his  widow.  In  the  same  manner  the  creditor  could 
collect  the  fruits  of  land  pledged  to  him  in  case  of  redemption 
after  tillage,  and  the  same  was  true  when  an  earlier  possessor  was 
obliged  to  surrender  to  the  holder  of  a  preemption  right. 

In  all  these  cases  the  underlying  idea  was  that  the  tiller,  by  the 
tillage,  acquired  a  special  property  before  the  separation  of  the 
soil  and  its  products ;  it  was  only  later  that  a  real  right  of  ex- 
pectancy was  assumed,  from  which  ownership  was  developed  by 
the  act  of  taking  possession. 

(II)  The  Modem  Law.  —  After  the  Reception  the  Roman  rules 
concerning  appropriation  of  fruits  were  recognized  alike  in  the 
common  law  and  in  most  of  the  regional  systems.  They  were 
absolutely  opposed  to  the  rules  of  the  native  law.  In  place  of 
the  principle  of  "  production  "  ("  Produktionsprinzip  ")  they  sub- 
stituted the  principle  of  "substance"  ("  Substantialprinzip  ")  ;^ 
that  is,  whoever  is  the  owner  of  the  land  at  the  moment  its  fruits 
are  separated  from  it  is  also  the  owner  of  the  fruits.  Only  a  few 
exceptions  were  recognized.  Under  the  common  law  the  emphy- 
teuta  and  a  "  bonse  fidei  possessor  "  acquired  the  fruits  instead  of 
the  landowner,  and  from  the  moment  of  their  separation ;    and 

1  Ssp.,  II,  58,  §§  1,  2.  2  Ibid.,  4G,  §  2. 

3  Gierke,  "Privatreeht",  II,  588. 

435 


§  G2]  THE  LAW  OF  THINGS  [Book  II 

likewise  a  iisiifriictuary  and  a  usufructuary  lessee  {"  Pacliter  "), 
but  these  only  from  the  moment  of  collection  ("  Perzeption  "). 
And  in  the  regional  systems,  including  the  Austrian  and  the  Saxon 
Codes  anil  the  Code  Civil,  title  to  the  fruits  was  similarly  given 
to  these  same  parties  either  from  the  moment  of  separation  or  from 
that  of  collection.  The  Prussian  "  Landrecht  "  preserved  intact 
the  Germanic  principle,  ascribing  to  the  person  entitled  to  the 
collection  of  the  fruits  a  separate  property  even  in  the  growing 
products  of  the  soil,  in  true  Germanic  fashion.^ 

The  present  Civil  Code  has  adopted  the  Roman  principle :  the 
rule  is  the  identity  of  ownership  in  the  fruit  and  the  thing  it  grows 
from.  But,  unlike  the  common  law  and  with  a  practical  approxi- 
mation to  the  principle  of  the  Germanic  law,  it  permits,  under 
some  circumstances,  the  acquisition  of  ownershi])  in  the  fruits  by 
other  persons  from  the  moment  of  tlieir  separation ;  especially  in 
favor  of  usufructuaries.  Other  i)ersons  entitled  to  the  fruits  be- 
come owners  only  upon  taking  possession  of  them  (§§  953-957). 
Under  the  Swiss  Civil  Code,  also,  natural  fruits  belong  to  the 
usufructuary  if  they  ripen  during  the  time  that  he  enjoys  such 
rights;  and,  moreover,  he  who  cultivates  the  field  has  a  claim  for 
proper  compensation  against  one  who  receives  the  fruits  when 
ripe  (§  756). 

§  f)3.  Alienation  of  Chattels.  (I)  Alienation  by  Persons  En- 
titled to  Convey.  —  (1)  The  conveyance  of  chattels  was  made  in 
tlic  ohkr  Germanic  law  differently  than  a  conveyance  of  land. 
Publicity  and  a  sensuous  formalism  were  not  necessary  in  the  case 
of  the  former ;  for  the  chattel  itself  could  be  given  from  hand  to 
hand,  which  was  not  possible  in  the  case  of  land.  This  transfer 
of  physical  seisin,  which  was  of  course  required  to  be  associated 
with  a  will  to  convey  the  ownership,  was  necessary  under  all  cir- 
cumstances. The  view  that  a  contract  to  convey  was  sufficient,^ 
is  without  support  in  the  sources.  Nor  did  Germanic  law  recog- 
nize a  declaration  by  a  proprietary  possessor  of  a  will  to  possess 
thenceforth  for  another,  to  whom  the  title  should  be  thus  con- 
veyed ;  since  here  the  requirement  of  a  manifest  "  change  of  phys- 
ical control  "  was  unsatisfied.  It  was  probably  satisfied,  how- 
ever, when  the  acquirer,  instead  of  taking  the  physical  seisin  of 
the  thing,  marked  it  with  some  visible  antl  symbolical  sign  of  his 

1  Allg.  L.  R.,  I,  0,  §221  :  "The  fruits  ('Frufhtc', —  offspring:,  produce) 
of  a  thini^  are,  from  the  moment  of  their  origin,  the  i)roperty  of  him  who 
has  the  right  of  usufruet  in  such  thing." 

2  Sohm,  "Das  Itccht  der  Ehcschliessung"  (1875),  80  et  seq. 

436 


Chap.  VIII]  THE   LAW   OF   CHATTELS  [§  63 

control,  such  e.g.  as  a  "  house-"  mark.  Moreover,  there  was 
already  developed  in  the  earl\'  Middle  Ages,  as  a  logical  result  of 
this  idea  in  connection  with  the  "  traditio  cartse  "  of  the  Frankish 
period,  the  conveyance  of  certain  goods  by  a  delivery  of  commer- 
cial paper  that  embodied  in  writing  a  right  to  the  delivery  of  the 
goods  therein  mentioned ;  a  principle  which  was  later  to  acquire 
particularly  great  importance  in  commercial  law  (bill  of  lading, 
way  bill,  warehouse  receipt;  supra,  pp.  212  et  seq.). 

(2)  The  Modern  Law.  —  The  Roman  law  likewise  required  for 
the  conveyance  of  movables  a  physical  delivery  united  with  an 
intention  on  the  part  of  the  alienating  owner  to  transfer  his  title 
and  an  intention  on  the  part  of  the  transferee  to  acquire  such ; 
that  is,  a  physical  delivery  united  with  a  "  valid  title  "  ("  giiltiger 
Titel  ").  To  this  extent,  therefore,  the  alien  was  in  agreement 
with  the  native  law.  But  the  Roman  law,  and  the  common  law 
which  followed  it,  recognized  certain  exceptions  (as  already  noted 
supra,  p.  211)  to  the  rule  that  possession  of  immovables  could 
be  transferred  only  by  corporeal  delivery.  And  these  exceptions, 
—  which  were  classified  along  with  cases  of  incorporeal  delivery 
derived  from  Germanic  legal  ideas  under  the  name  "  traditio 
ficta  ",  —  were  now  generally  applied  to  conveyances  of  chattels, 
with  the  result  that  corporeal  delivery  continually  lost  impor- 
tance in  the  conveyance  of  ownership  in  movables.  To  be  sure, 
only  the  French  law  abandoned  entirely  the  requirement  of  phys- 
ical transfer,  attributing  to  the  contract  of  conveyance,  solely 
and  exclusively,  the  efficacy  of  the  conveyance.  The  Prussian 
"  Landrecht ",  and  the  old  Commercial  Code  which  followed  it, 
gave  effect  to  the  same  principle  in  the  conveyance  of  ships  and 
interests  therein  ("  Schiffsparten  "),  but  with  this  exception  the 
requisite  of  physical  delivery  was  maintained.  And  so  in  the 
present  Civil  Code,  which  requires  a  real  agreement  to  convey 
("  Willenseinigung  ",  "  Ubereignungsvertrag  ")  and  a  visible 
transfer  ("  Ubergabe  ")  in  accord  with  the  pre-existing  law, 
but  also  recognizes  as  sufficient  for  such  transfer  certain  sub- 
stitutes (supra,  p.  212)  which  in  part  do  not  require  an}^  change 
whatever  of  possession.  Of  course,  the  real  ("  dingliche  ")  effects 
of  the  bearer  paper  of  commercial  law  were  also  preserved 
unchanged. 

(II)  Acquisition  of  Title  from  Persons  only  apparently  Entitled 
to  Convey  it.  —  The  rule,  already  discussed,  "  hand  must  warrant 
hand  ",  which  dominated  the  medie\'al  law  of  chattels,  deprived 
the  owner  of  the  possibility  of  demanding  the  return  of  his  chattel 

437 


§  63]  THE    LAW    OF   THINGS  [BoOK   II 

in  case  it  had  passed  in  any  manner  from  the  bailee's  hand  to  the 
hand  of  a  third  person.  In  many  cases,  a  stranger  acqniring  the 
chattel  was  thus  completely  protected  against  any  claim  for  its 
redelivery;  as,  for  example,  when  the  bailee  had  meanwhile 
died.  For  practical  purposes  this  was  the  same  to  him  as  if  he 
had  acquired  the  ownership  of  the  chattel.  Nevertheless,  a  trans- 
fer of  title  did  not  take  place.  If,  for  example,  a  third  person  had 
bouglit  the  chattel  from  the  bailee  and  had  thereafter  returned 
it  to  the  latter  as  a  loan  ("  leihweise  "),  then  the  instant  it  returned 
to  the  seisin  of  the  bailee  the  owner  was  again  in  a  position  to  de- 
mand it  from  him,  and  the  third  person,  notwithstanding  the  sale 
to  him,  had  no  right  which  he  could  oppose  to  such  demand.  In 
the  same  way  the  third  person  must  yield  to  the  right  of  the 
owner  if  the  thing  was  returned  by  accident  into  the  seisin  of  the 
owner.  After  the  Reception  it  must  have  been  natural  to  regard 
the  limitation  imposed  upon  chattel  actions  by  the  rule  "  hand 
must  warrant  hand  "  as  one  upon  proof  of  absolute  title  ("  Vindi- 
kation  "),  although  the  two  actions  were,  as  we  have  shown,  of 
totally  different  character.  But  men  did  not  rest  content  at  this 
point ;  only  the  French  law  retained  this  view.  Other  modern  legal 
systems  regarded  this  effect  of  seisin  not  only  negatively,  as  a 
limitation  upon  the  ownership  of  him  who  transferred  the  chattel, 
but  also  positively,  as  a  basis  for  the  acquisition  of  the  title  by  a 
third  person.  This  was  true  of  the  Prussian  "  Landrecht ",  the  Aus- 
trian Code,  the  German  Bills  of  Exchange  Act,  and  (for  the  first 
time  with  any  formulation  of  theory)  of  the  general  German  Com- 
mercial Code  (§  306).^  The  new  Civil  Code  has  also  adopted  the 
same  rule  (§  935),  for  according  to  it  (supra,  pp.  423  et  seq.)  a  per- 
son who  acquires  in  good  faith  chattels  that  have  not  been  stolen 
from  their  owner,  or  lost  by  him,  or  otherwise  removed  from  his 
possession,  —  in  other  words  chattels  he  has  bailed,  —  acquires 
the  ownership,  notwitlistanding  that  the  apparent  owner  ("  Eigen- 
besitzer",  possessor  with  color  of  title)  was  in  fact  not  the  true 
owner.  The  Swiss  Civil  Code,  as  already  mentioned,  has  also 
taken  the  same  position,  save  that  it  limits  the  possibility  of  ac- 
quiring title  to  a  five-year  period.  With  these  changes  "  the 
relative  effect  of  the  rule  '  hand  warrant  hand  '  has  been 
strengthened  into  one  of  absolute  character."  ^  The  title  of  the 
person  originally  owner  has  disappeared,  and  ownership  has  been 
transferred  by  the  juristic  act  of  one  who  was  merely  an  apparent 

*  See  the  citations  on  pp.  420  d  seq.,  supra. 
'  Gierke,  "Privatrecht  ",  II,  50G. 

438 


Chap.  VIII]  THE   LAW   OF   CHATTELS  [§  64 

owner.  This,  too,  is  a  further  development  of  principles  of  the 
law  of  seisin,  which  have  abrogated  the  Roman  rule  "  nemo  plus 
iuris  transferre  potest  quam  ipse  habet." 

§  64.  Positive  Prescription.  (I)  The  Older  Law.  —  Under  the 
older  Germanic  law  it  was  impossible  to  acquire  ownership  in 
chattels  by  mere  lapse  of  time,  for  the  institute  of  citation  seisin 
was  here  unavailable,  since  a  release,  such  as  created  judicial 
seisin  in  lands,  did  not  exist  in  the  transfer  of  chattels  (supra,  p. 
405).  A  consequence  of  this  was  that,  as  the  Sachsenspiegel  says, 
the  vendor  of  chattels  was  bound  to  warrant  so  long  as  he  lived 
the  title  of  the  acquirer.^  Mere  lapse  of  time  has  since  been 
recognized,  exceptionally,  as  a  basis  for  the  acquisition  of  owner- 
ship. Thus,  for  example,  under  the  law  of  Hamburg  and  Liibeck 
a  person  entitled  to  a  chattel  action  for  the  recovery  of  property 
introduced  from  abroad  was  precluded  by  silence  after  a  year 
and  a  day  {supra,  p.  418).  At  the  same  time,  the  rule  of  the  im- 
possibility of  judicial  seisin  applied  only  to  cases  of  derivative 
acquisition  of  title,  since  it  was  only  in  such  cases  that  the  absence 
of  a  release  and  of  the  citation  therewith  associated  need  be  con- 
sidered. In  the  case,  however,  of  original  acquisition,  as  for  ex- 
ample in  the  case  of  trove,  ownership  might  originate,  as  already 
mentioned  (supra,  pp.  428  et  seq.),  in  acquiescent  preclusion  by 
silence  following  a  citation  of  claimants. 

(II)  The  Modern  Law.  —  But  here  also  the  Roman  law  pre- 
vailed ;  its  principle  of  acquisitive  prescription  of  chattels  became 
the  common  law  of  Germany,  and  the  principle  was  also  adopted 
in  the  regional  legal  sysems.  Only,  in  these  the  prescriptive 
periods  were  not  always  identical  with  the  Roman  (three  years  in 
the  case  of  ordinary,  thirty  or  forty  in  the  case  of  extraordinary  pre- 
scription), but  frequently  varied  from  these  as  a  result  of  the  influ- 
ence of  the  Germanic  law.  For  example,  in  the  common  Saxon  law 
the  periods  of  a  year  and  a  day  and  (for  extraordinary  prescription) 
thirty-one  years  and  one  day  were  customary.  Again,  the  Roman 
law  excepted  from  the  rule  of  ordinary  prescription  chattels  stolen 
or  robbed,  and  in  the  common  law  the  question  remained  a  con- 
troverted one ;  but  in  the  regional  systems  there  was  applied  to 
such  chattels,  sometimes  the  ordinary  acquisitive  prescription 
(although  often,  for  example  in  the  Prussian  "Landrecht",  only 
when  they  were  in  the  hand  of  a  third  acquirer)  and  sometimes 
the  extraordinary.  Only  the  French  law  clung  to  the  Germanic 
view,  refusing  to  recognize  at  all  a  positive  prescription.  The 
1  Ssp.,  Ill,  83,  §§  2,  3. 
439 


§  64]  THE    LAW    OF   THINGS  [BoOK   II 

rule  adopted  by  the  present  Civil  Code  is  novel.  Its  acquisitive 
prescription  of  movables,  including  chattels  stolen  and  robbed,  is 
perfected  in  ten  \'ears,  but  it  also  requires  apparent  possession  in 
gooil  faith  on  the  part  of  the  acquirer;  a  requisite  nowhere  else 
recognized,  save  in  the  common  law  in  cases  of  extraordinary 
positive  ])rescription.  In  addition  to  this  it  recognizes  a  pre- 
clusive prescription  of  proi)rietary  actions  that  is  perfected  in 
thirty  years.  The  Swiss  Civil  Code  requires  apparent  proprietary 
possession,  unchallenged  and  uninterrupted,  for  five  years  only. 

Topic  4.    The  Law  of  Cil\ttel  Pledges 

§  65.  The  Older  Law  of  Pledge.^ —  Owing  to  the  earlier  develop- 
ment of  ownership  of  chattels,  pledge  rights  in  movables  are  also 
of  greater  age  than  those  in  land.  It  is  probable,  indeed,  that  the 
conception  of  a  right  of  pledge  as  an  independent  real  right  orig- 
inated in  the  law  of  chattels  and  was  only  later  transferred  to 
the  law  of  land.  The  two  institutes  continued  to  be  dominated 
by  the  same  fundamental  ideas  {supra,  p.  377),  and  consequently 
the  same  technical  expressions  are  used  in  reference  to  both.  It 
is  true,  however,  that  the  development  in  details,  and  the  point 
to  which  development  was  carried,  differed  in  the  law  of  chattel 
and  of  real  pledges. 

(I)  The  Possessory  or  Ordinary  Pledge  ("Faustpfand  "). — The 
chattel  pledge  was  originally,  and  for  a  long  time  remained,  ex- 
clusively a  possessory  pledge :  "  ohne  Faust  kein  Pfand  ",  "  no 
pledge  without  detention"  ("fist").  The  })ledge  itself,  the  object 
of  the  pledge  right,  whether  a  lifeless  thing  ("  chest-  "  or  "  cabi- 
net-" pledge)  or  an  animal  ("  eating-"  pledge),  was  necessarily 
subject  to  the  physical  seisin  of  the  pledgee,  since  every  real  right 
in  chattels  was  associated  with  actual  physical  custody  of  the 
same  {supra,  p.  404). 

(1)  Creation.  —  Such  a  possessory  pledge  could  be  created  in 
various  ways. 

(A)  Already  in  the  folk-laws  mention  is  made  of  a  pledge  by  way 
of  contract  ("  vertragsmjissige  Pfandbestellung  ",  "  Satzung  "), 
by  which  the  debtor  transferred  some  movable  to  his  creditor  for 
security.  For  this  purpose  the  "  letting  out  of  the  debtor's 
seisin  "  ("  lassen  ut  von  sinen  geweren  ",  —  Ssp.  II,  00,  §  1)  was 
required,  but  not  the  form  required  in  the  gage  of  lands.  The 
technical  name  of  a  "  given  "  or  contractual  pledge  ("  gesetztes 

1  See  the  literature  cited  under  §  53  supra. 
440 


Chap.  VIII]  THE    LAW    OF    CHATTELS  [§  65 

Pfand",  "Satzung",  "  Pfandsatzung  ")  was  "  Wette  ",  wed 
{supra,  p.  375).  The  contractual  pledge  was  the  chief  type  of 
chattel  pledges. 

(B)  Private  distress,  in  which  a  right  of  pledge  was  created  by 
the  independent  power  of  the  creditor,  was  an  application  of  the 
right  of  self-help,  which  owing  to  the  inadequate  supply  of  money 
long  continued  to  be  practiced  (although  only  within  definite 
limits  set  by  the  law)  even  after  the  state  assumed  the  adminis- 
tration of  justice.  The  name  "  pledge  "  ("  Pfand  "  :  basic  mean- 
ing =  "  includere  ",  at  first  applied  to  impounded  cattle)  was 
commonly  used  in  the  Middle  Ages  solely  for  this  "  taken  " 
("  genommenes ")  pledge.  Private  distraint  occurred  in  two 
forms : 

As  distraint  for  the  satisfaction  of  contractual  debts.  Although 
according  to  the  most  ancient  sources,  those  of  the  Lombards, 
this  was  still  generally  permitted  when  a  debtor  did  not  perform 
an  obligation  assumed  in  a  duly  legal  manner,  in  the  other  folk- 
laws it  was  already  permitted  only  upon  the  basis  of  a  judicial 
authorization.  In  accord  with  this  principle  it  was  repeatedly 
laid  down  in  later  Territorial  Peaces  that  nobody  might  enforce 
his  rights  himself,  "  sine  auctoritate  iudicis  ",  by  taking  a  pledge.^ 
At  the  same  time,  however,  it  continued  to  be  recognized  that 
the  debtor  might  by  means  of  a  clause  of  distraint  subject  him- 
self contractually  to  an  extra-judicial  distress,  —  a  distress  "  with 
or  without  right"  ("  mit  und  ohne  Recht  "),  —  in  addition  to 
the  judicial ;  and  such  clauses,  which  were  explicitly  safeguarded 
in  the  Territorial  Peaces,^  remained  in  exceedingly  common  use 
throughout  the  Middle  Ages.  Similarly,  it  was  still  common  in 
the  Middle  Ages  to  regard  a  so-called  "  kundliche  "  (notorious) 
or  "  redliche  "  (honest)  debt,  — that  is,  one  which  was  admitted 
before  the  judge,  —  as  enforceable,  and  to  permit  private  dis- 
tress in  such  cases ;  ^  and  this  was  especially  common  in  agree- 
ments between  different  cities  and  localities  as  a  mutual  con- 
cession in  favor  of  their  respective  residents,  adopted  in  order  to 
lessen  the  lack  of  an  effective  administration  of  justice.  Par- 
ticularly widespread  were  the  rights  of  distraint  for  arrears  of 
ground  and  capital  rents  which  existed  in  favor  of  the  owners 
of  such  rents  as  against  peasant  rentalers  and  debtors.     In  many 

'For  example,  the  "Constitutio  Pads  Frideriei  II",  of  1235,  c.  14 
(M.  (>.,  Constitutiones,  II,  244). 

2  For  example,  the  "Constitutio  paeis  generalis  Albcrti  I  ad  Rhenum 
superiorem",  of  1.301,  e.  9  (M.  O.,  Constitutiones,  III,  102). 

^  For  examjile,  King  Wenzel's  Land-Peace  of  1398,  §  5. 

441 


§  65]  THE    LAW    OF   THINGS  [BoOK   TI 

regional  systems  this  grew  into  a  landlord's  right  of  distress  in 
tilings  which  were  in  the  custody  of  his  debtor  (the  hirer),  without 
being  his  property,  provided  the  hirer  (**  Mieter  ")  possessed  a 
claim  to  them  as  against  the  owner.  For  example,  a  lessor  ("  Ver- 
mieter  "),  if  a  tailor  owed  him  rent,  might  distrain  a  suit  for  which 
payment  was  still  owing  to  the  tailor.  Again,  a  guest  who  did 
not  pay  his  tavern  bill  must  submit  to  a  distraint  by  the  inn- 
keeper ;  and  in  this  we  must  doubtless  recognize  the  last  remnant 
of  a  right  of  private  distraint  that  once  existed  against  all  strangers, 
since  this  distraint  occurred  only  in  taverns  on  the  highways,  and 
not  in  the  drinking-room  of  gildsmen.^ 

As  distraint  for  security  against  damages  other  than  from  breach 
of  contract,  and  directed  against  either  human  beings  or  animals. 
This  served  originally  not  only  to  insure  a  landholder  compensa- 
tion for  damage  done  by  men  or  by  animals,  but  also  to  preserve 
the  evidence  of  damage.  The  distress  of  cattle  ("  Schuttung  "), 
especially,  was  one  of  the  most  widely  spread  legal  institutes  in  the 
rural  economic  life  of  the  Middle  Ages ;  the  dooms  are  full  of 
pro\isions  respecting  it,  and  it  is  exhaustively  treated  also  in  the 
Law  Books. 

(C)  Finally,  a  right  of  pledge  might  also  arise  in  favor  of  a 
creditor  through  jidicial  distress.  True,  the  folk-laws  did  not 
originally  recognize  any  process  of  judicial  execution.  However, 
in  a  royal  Mero^'ingian  statute  so  old  as  to  be  included  in  the  "  Lex 
Salica  "  ("  L.  Sal.",  Tit.  50,  3)  there  was  allowed  the  creditor,  in 
lieu  of  private  distraint  against  his  debtor,  a  distraint  against  him 
(known  in  the  "Lex  Ribuaria "  as  "  strudes  legitima  "  — "  Strud  " 
=  "  Raub  ",  rape,  carrying  off)  exercisable  through  the  royal 
counts,  provided  the  precondition  essential  to  a  private  distress 
was  present,  namely  a  promise  to  pay  made  in  proper  legal  form. 
To  be  sure,  this  Frankish  "  Strud  ",  which  was  developed  as  a 
special  outlawry  limited  to  the  debtor's  property,^  immediately 
gave  the  creditor  full  ownership  of  the  chattels  seized.  A  judicial 
distress  that  created  a  mere  pledge  right  was  first  recognized  in 
the  Lombard  and  Visigothic  law,  in  imitation  of  the  creditor's 
extra-judicial  distress.  In  the  Middle  Ages  execution  by  judicial 
process  against  the  debtor's  movables  became  the  ordinary  end  of 
an  action  for  debt.  The  judicial  deprivation  of  a  debtor  of  custody 
over  chattels  in  his  possession,  effected  by  the  bailiffs  of  the  court 
("  Fronboten  "),  for  the  purpose  of  satisfying  his  creditor,  created 

'  rfuher,  "Sc'hw.  Privatrofht ",  TV,  827. 
^  Brunncr,  "Gcsohichte",  II,  452  ct  seq. 

U2 


Chap.  VIII]  THE   LAW   OF   CHATTELS  [§  65 

a  pledge  right  in  the  creditor  which  enabled  him  to  satisfy  him- 
self if  the  pledge  was  declared  forfeited  to  him  by  the  court. 

(2)  Content  of  the  Pledge  Right.  —  In  conformity  with  the  prin- 
ciples of  the  Germanic  law  of  liability  ("  Haftungsrecht  ",  — 
supra,  p.  375  and  infra,  §  68)  there  was  created  by  the  pledge  of 
a  chattel  a  strictly  real  liability  of  the  thing  that  was  taken 
or  given  in  pledge.  The  obligee  received  in  the  pledge  an  object 
of  value  upon  which  he  could  rely,  and  must  exclusively  rely,  in 
case  the  obligation  was  not  satisfied.  He  possessed  in  it  a  real 
right  clothed  in  the  form  of  a  pledge-seisin  ("  ut  de  vadio  "), 
which,  as  in  the  law  of  landed  gages,  was  limited  by  the  agree- 
ment ("  Gedinge  ")  made  with  the  debtor,  or  in  the  case  of  the 
"  taken  "  pledge  by  the  tacit  condition  that  the  thing  should  be 
treated  as  the  equivalent  of  the  debt  in  case  of  default  in  paying 
the  latter.  Whether  the  debtor  who  created  the  pledge  or  from 
whom  it  was  taken  was  or  was  not  its  owner  was  immaterial, 
for  the  effect  of  the  principle  "  hand  must  warrant  hand  "  was 
that  the  pledgee,  even  when  he  acquired  his  pledge-seisin  from 
another  who  was  not  an  owner,  was  protected  against  a  demand 
for  redelivery  made  by  a  third  party.^  The  debtor  retained  a 
right  to  redeem,  notwithstanding  that  no  duty  of  redemption 
was  imposed  upon  him.  If,  however,  he  offered  to  redeem  the 
pledge,  or  if  the  debt  was  canceled  in  some  other  manner,  then 
the  creditor  was  bound  to  redeliver  the  pledge  in  the  same  condi- 
tion in  which  he  had  received  seisin  thereof.  There  was  there- 
fore united  with  his  right  of  custody  a  duty  to  keep  and  preserve 
the  pledge,  which  involved  in  the  case  of  "  eating  "-pledges  their 
feeding  and  care,  although  he  was  entitled  to  his  outlay  therefor. 
He  was  therefore  bound  to  give  damages  to  the  debtor  in  case  he 
lessened  the  value  of  the  pledge  by  use,  except  in  those  cases  in 
which  a  right  of  user  and  of  usufruct  was  expressly  granted  him. 
He  was  likewise  liable  to  pay  damages  if  he  alienated  the  pledge 
or  repledged  it ;  for  in  consequence  of  the  rule  "  hand  warrant 
hand  ",  the  debtor  could  not  go  against  a  third  person  but  was 
limited  to  his  claim  against  the  other  party  to  the  contract,  that 
is  the  pledgee.  Even  when  the  pledge  was  destroyed  or  was  lost 
or  lessened  in  value  while  in  the  seisin  of  the  pledgee,  without  his 
fault,  he  was  bound  to  make  good  the  damages  thereby  caused 
to  a  debtor  who  offered  to  redeem.  For  the  creditor's  duty  to 
redeliver  was  the  counterpart  of  the  debtor's  right  to  redeem. 
But  if  the  thing  was  accidentally  destroyed  or  if  it  deteriorated 
1  Ssp.,  II,  60,  §  1.  See  p.  409  supra. 
443 


§  65]  THE    LAW    OF   THINGS  [BoOK   II 

in  quality  while  in  the  possession  of  the  pledgee,  the  latter  could 
not  in  turn  demand  compensation  from  the  debtor  for  such  loss 
of  value ;  for  by  accepting  the  pledge  he  had  declared  that  it 
should  answer  for  his  claim,  and  that  liability  should  be  Umited 
to  its  value. 

Thus,  as  a  necessary  consequence  of  the  principles  of  the  older 
law,  the  pledgee,  as  the  holder  of  the  seisin,  bore  the  entire  risk 
of  deterioration  in  or  destruction  of  the  pledge,  even  though  by 
accident.  Tlie  Sachsenspiegel  lays  this  down  as  still  the  general 
theory.^  This  strict  view  was  first  departed  from  in  the  case  of 
"  eating-"  pledges,  the  pledgee  being  released  from  his  obligation 
to  pay  damages  in  case  of  their  destruction  without  his  fault. 
The  Sachsenspiegel  already  states  this  exception  to  the  rule.^ 
Later  legal  systems  (first  in  South  Germany,  but  later  e.g.  that  of 
Liibeck  also)  released  the  pledgee  in  all  cases  from  liability  for 
accident,  making  him  responsible  solely  for  damages  due  to  his 
own  fault.  This  became  the  general  rule  also  for  the  "  taken  " 
pledge ;  the  pledgee  had  to  bear  the  risk  so  long  as  he  was  bound 
to  keep  the  thing,  that  is  so  long  as  the  debtor  was  not  in  default 
in  redemption.^  With  this  new  rule,  there  was  therefore  secured 
a  division  of  the  risk  between  creditor  and  debtor :  "  in  the  case 
of  accidental  destruction  the  creditor  lost  his  money,  but  the  owner 
lost  the  value  of  the  thing,"  ^ 

A  further  weakening  of  the  old  principles  is  seen  in  the  fact 
that  it  became  customary  from  the  1200  s  onward  to  unite  a  so- 
called  "  Geloben  zum  Pfande  "  ("  promise  in  pledge  ",  covenant 
accessory  to  a  pledge)  with  the  contract  pledge  ("  Satzung  ") 
of  specific  chattels,  as  is  shown  by  a  later  supplement  to  the 
Sachsenspiegel.'^  By  this  the  debtor  assumed  an  additional 
liability  in  that  he  subjected  his  other  property  to  attack  by 
the  creditor.  In  time  such  general  real  liability  commonly 
became  a  statutory  part  of  the  law  of  chattel  pledges. 
Where  the  law  was  thus  extended  there  no  longer  existed  any 
danger  for  the  pledgee,  since  he  could  reimburse  himself  from  the 
debtor's  other  property  for  any  loss  suffered  by  the  destruction 
or  deterioration  of  the  pledge.  That  is,  he  could  distrain,  by 
authority  of  the  covenant    ("  Geliibde  ")    or  by  authority  of  a 

1  Ssp.,  Ill,  .'),  §  4.  2  Ihid.,  §  5. 

3  Heusler,  "  Institutionen  ",  II,  209. 

*  Giprkc,  "Privatrecht",  II,  959.  Cf.  tho  "Magdeburger  Fragen",  I, 
6  d,  6. 

5  It  adds  to  III,  5,  §  5,  at  the  end,  the  words  :  "ire  gelovede  ne  stiinde 
den  anderes." 

444 


Chap.  VIII]  THE    LAW    OF    CHATTELS  [§  65 

statutory  liability  of  other  property,  upon  other  pieces  of  the 
debtor's  property  to  the  extent  of  the  excess  of  his  claim  above 
the  value  of  the  original  pledge ;  by  which  means  he  secured  a 
pledge  right  in  them  also.  Conversely,  however,  he  was  bound 
to  return  to  the  debtor,  when  the  latter  redeemed,  any  amount 
by  which  the  value  of  the  pledge  should  ha\e  exceeded  the 
amount  of  his  claim.  At  this  stage  of  its  development  the  right 
of  pledge  had  completely  lost  its  original  character  of  a  strictly 
real  liability,  and  had  become  ''  a  purely  secondary  security  in- 
stead of  being  an  optional  means  of  satisfaction  in  place  of  pay- 
ment." 1 

(3)  Satisfaction.  —  It  followed  from  the  original  character  of 
the  pledge  as  a  provisional  "  spot  "  payment  ("  Barzahlung  ") 
that  the  chattel  pledge  was  by  nature  a  forfeiture-pledge.  If  it 
was  not  redeemed  in  due  time,  it  was  definitively  forfeited  to  the 
creditor  in  place  of  the  payment  of  the  debt,  without  regard  to 
the  relative  value  of  the  pledge  and  the  claim.  The  rule  was  that 
the  title  of  the  chattel  of  which  the  creditor  held  a  pledge  seisin 
was  convey-ed  to  him  by  decree  ("  Erklarung  ")  of  court,  after 
demand  thrice  repeated  upon  the  debtor ;  however,  an  immediate 
forfeiture  could  be  agreed  upon  by  contract  between  the  parties. 
As  the  result,  however,  of  the  appearance  of  the  covenant  acces- 
sory to  a  pledge  ("  Sichgelobens  zum  Pfande  "),  the  forfeiture- 
pledge  was  necessarily  transformed  into  a  sale-pledge.  For  since 
the  creditor,  in  case  the  pledge  v>^as  of  insufficient  value,  could 
thenceforth  bring  further  claims  against  the  debtor,  while  the 
debtor  in  case  of  the  excess  value  of  the  pledge  could  in  turn  de- 
mand the  delivery  of  such  surplus,  it  became  necessary  to  deter- 
mine the  value  before  the  creditor  was  satisfied.  This  necessi- 
tated a  sale  of  the  pledge.  If  a  private  right  of  sale  was  not 
expressly  reserved  to  the  creditor,  the  sale  was  made  judicially, 
and  ordinarily  only  after  a  thrice  repeated  citation  of  the 
debtor.  JMoreover,  the  creditor  was  bound  to  seek  satisfaction, 
in  the  first  place,  by  a  repledge.  If  neither  this  nor  a  sale 
proved  successful,  the  pledge  was  conveyed  to  the  creditor  at  an 
appraised  value. 

(II)  The  Modern  Contract  Pledge  ("  Satzung  ")  cf  Chattels.- 
—  In  the  last  centuries  of  the  ]\Iiddle  Ages  there  became  usual 
in  Germany,  —  if  not  everywhere,  at  least  within  the  territory 
of  some  of  its  legal  systems,  —  a  pledge    of  movables  eftected 

^  Ileuslcr,  "Institutionen",  II,  205. 

2  Herbert  Meyer,  "Neuere  Satzunj?  von  Fahrnis  uiid  Schiffen"  (1903). 

445 


§  65]  THE    LAW    OF   THINGS  [BoOK  II 

without  livery  of  seisin ;  in  other  words,  a  form  of  pledge  that 
corresponded  to  the  execution-gage  in  the  law  of  land  pledges. 
This  Germanic  hypothec  of  chattels,  the  earliest  bases  of  which 
are  to  be  found  in  Scandinavian  law  (Iceland),  was  utilized 
especially  in  Liibeck  and  the  region  in  which  its  law  prevailed, 
and  as  respects  chattels  of  the  most  varied  kind.  Of  course,  it 
recommended  itself  especially  in  the  case  of  things  which  because 
of  their  nature  could  not  easily  be  removed  from  the  place  of 
their  origin  or  usual  location  in  order  to  put  them  in  the  custody 
of  the  creditor ;  for  example,  wine  in  vats,  heaps  of  grain,  stocks 
of  goods,  agricultural  products,  agricultural  implements,  chests 
of  unknown  content,  etc.  But  this  was  a  necessary  precondition 
only  in  Hamburg  and  in  Wisby.  In  Liibeck  the  transfer  of  seisin 
was  also  waived  in  the  case  of  other  objects.  For  example,  it 
happened  there  in  the  1400  s  that  a  painter  pledged  an  altar  paint- 
ing upon  which  he  was  working  to  two  burghers  of  the  town 
because  they  had  been  sureties  for  his  repayment,  by  completion 
of  the  picture,  of  an  advance  made  to  him  by  those  who  ordered 
the  painting.  The  picture  was  not  delivered  to  the  pledgees, 
although  it  might  easily  have  been  transported  ;  the  painter  could 
not  remove  it  from  his  workshop  if  he  were  to  complete  it,  and 
the  two  burghers  trusted  him  not  to  deceive  them  by  a  secret 
alienation  of  the  painting  to  other  persons.  Above  all,  ships  of 
every  kind  were  pledged,  without  transfer  of  possession,  in  the 
sea  towns  of  the  Liibeck  law  (namely,  in  addition  to  Liibeck  itself, 
in  Wismar,  Rostock,  Stralsund,  Greifswald,  Danzig,  Riga,  Reval), 
and  likewise  in  Hamburg  and  in  Kiel.  But  for  such  contractual 
pledges  a  public  and  formal  act  was  always  necessary  in  place  of 
a  livery  of  seisin.  According  to  the  oldest  law,  as  it  has  been 
preserved  in  the  town  law  of  Wisby,  in  Gotland,  the  giving  ("  Set- 
zen  ")  of  the  pledge  was  a  solemn  act  that  took  place  before 
witnesses  expressly  called  for  the  purpose;  only  later  (from  the 
1300  s  onward)  was  an  entry  also  made  in  the  town  register,  and 
this  entry  had  at  first  merely  the  significance  of  a  memorandum 
to  identify  the  witnesses.  Finally,  in  accord  with  the  general 
development  of  the  law  of  land  registry  {.supra,  pp.  218  et  seq.), 
the  entry  became,  in  this  case  as  in  others,  the  formal  act  that 
consummated  the  creation  of  the  j)ledge. 

The  chattel  hypothec  made  the  pledge  liable  to  the  creditor  in 
the  same  way  as  in  the  case  of  a  possessory  pledge.  It  is  true 
that  the  pledge  right  lost  its  real  ("  dingliche  ")  effect  in  favor 
of  the  creditor  if  the  chattel  was  removed  from  the  debtor's  pos- 

446 


Chap.  VIII]  THE    LAW    OF    CHATTELS  [§  66 

session;  but  this  restriction  upon  pursuit  of  the  chattel  against 
third  parties  was  here  again  the  simple  and  necessary  conse- 
quence of  the  principle  "  hand  must  warrant  hand." 

Outside  the  region  of  the  Liibeck  law  the  chattel  hypothec  was 
adopted  in  a  few  other  Territories  and  cities.  Its  most  important 
forms  were  the  mortgages  ("  Verschreibungen  ",  "  Insatze  ")  of 
movables  in  Frankfort  o.  M.  But  above  all  it  prevailed  in  the 
South  throughout  an  area  that  equaled  in  importance  that  in 
which  it  prevailed  among  the  North  Germans :  it  conquered  for 
itself  the  whole  of  Switzerland,  —  to  be  sure  somewhat  later  than 
the  cities  of  the  sea-coast,  —  and  has  maintained  its  authority 
there  from  the  1400  s  down  to  the  present  day. 

§  66.  The  Modern  Development  of  the  Law  of  Chattel  Pledges. 
—  (I)  In  general.  —  In  the  law  of  chattel  as  in  that  of  land 
pledges  the  rules  of  the  native  law  were  at  first  displaced  in  large 
measure  by  those  of  the  Roman  law.  Some  of  them,  however, 
maintained  themselves  in  the  regional  systems,  and  in  time  a  re- 
turn was  made  to  the  old  law,  so  that  here  too  there  resulted  "  a 
more  or  less  clumsy  union  of  Roman  and  Germanic  rules."  ^ 
Modern  legislation,  first  in  the  great  codifications  and  then  in 
numerous  special  statutes  of  the  1800  s,  explicitly  recognized  the 
concepts  of  the  Germanic  law.  In  the  end  these  were  once  more 
raised,  in  their  most  important  points,  to  the  rank  of  a  common 
German  law  by  the  present  Civil  Code,  which  was  preceded,  in 
this  respect,  by  the  General  Commercial  Code  as  well  as  by  the 
imperial  judicature  acts. 

(1)  Creation.  (A)  contract  or  "  given  "  pledge.  —  As  a  result 
of  the  Reception  the  Roman  chattel  hypothec  acquired  the  preva- 
lence of  common  law.  At  least  in  Germany  the  modern  form  of 
contract  pledges  of  chattels  that  grew  up  on  a  basis  of  Germanic 
law  sooner  or  later  gave  way  before  it,  with  the  exception  of  the 
law  of  ship  mortgages  {infra, under  (II)).  In  Liibeck  it  was  done 
away  with  already  in  the  1500  s ;  most  of  the  derivative  systems 
of  Liibeck  law  soon  followed  this  example.  In  Hamburg  it  was 
maintained  until  the  1800  s,  and  the  "  Insatze  "  of  Frankfort 
likewise  fell  into  desuetude  only  in  the  1800  s.  It  has  already  been 
mentioned  that  it  remained  actual  law  in  Switzerland  down  to 
very  recent  times. 

To  be  sure,  the  chattel  hypothec  suffered  modifications  under 

the  influence  of  the  Germanic  law.     It  gave  the  creditor  a  real 

right  which  was  effective  only  to  a  limited  extent,  and  which  could 

1  Cosack  in  Gerber's  "System"  (17tli  ed.),  300. 

447 


§  66]  THE    LAW    OF   THINGS  [BoOK   H 

not  be  enforced  against  a  bona  fide  third  possessor :  an  after 
effect  of  the  rule  "  hand  must  warrant  hand."  It  was  postponed 
to  a  hiter  right  of  possessory  pledge.  Though  a  general  hypothec 
in  chattels  was,  as  such,  recognized,  this  did  not  restrict  the 
debtor  in  his  power  of  disposing  of  individual  chattels.  Above 
all,  certain  formal  requirements  for  the  creation  of  a  pledge  were 
maintained ;  in  particular,  a  document  was  required  to  be  exe- 
cuted containing  an  acknowledgment  of  the  debt  and  an  assump- 
tion of  the  obligation  to  pay  it. 

From  the  1700  s  onward  the  chattel  hypothec  was  again  re- 
pudiated. It  was  already  rejected  in  the  Prussian  hypothec  and 
bankruptcy  ordinance  of  1722.  In  the  1800  s  it  once  more  be- 
came a  general  principle  that  a  contractual  pledge  right  in  a  chattel 
could  be  created  only  by  means  of  a  possessory  pledge ;  that  is, 
by  an  outwardly  manifest  act  of  delivery,  or  in  such  manner  as 
otherwise  to  secure  to  the  creditor  actual  control  of  the  thing. 
For  this  reason  its  creation  b}^  "  constitutum  possessor ium  "  was 
excluded.  On  the  other  hand,  in  the  commercial  law  pledges  were 
allowed  to  be  created  by  delivery  of  "  real  "  documents  of  title 
("  dingliche  Traditionspapiere  "),  —  bills  of  lading,  way-bills, 
and  warehouse  receipts. 

Although  a  few  regional  legal  systems,  for  example  the  Code 
Civil,  required  the  execution  of  a  document  in  addition  to  delivery 
of  the  chattel,  the  General  Commercial  Code  abrogated  such 
formalities  in  the  case  of  merchants  (§  309),  and  in  harmony 
with  this  tendency  of  development  the  present  Civil  Code  requires 
for  the  creation  of  a  chattel  pledge  bj^  juristic  act  both  a  real  con- 
tract and  either  delivery  of  the  chattel  or  a  proper  substitute  for 
such  delivery.  An  agreement  to  hold  possession  for  the  pledgee 
("  Konstitut  ")  is  therefore  no  longer  sufficient  (§  1205).  The 
Swiss  Civil  Code  is  to  the  same  effect.  But,  in  addition  to  the 
possessory  pledge,  the  Swiss  Code  recognizes  in  pledges  of  cattle, 
and  in  the  interest  of  banks  loaning  on  the  security  of  cattle 
("  Viehleihanstalten  "),  a  mortgage  whose  publicital  effect  is 
derived,  not  from  possession,  but,  as  in  the  case  of  a  mortgage 
of  land,  from  an  entry  in  a  ])ul)lic  register  (§  885). 

Moreover,  in  those  legal  systems  that  retained  the  Germanic 
principle  "  hand  nuist  warrant  hand  "  either  in  its  pure  or  in  a 
modified  form,  it  was  not  necessary  in  all  cases  that  the  debtor 
should  himself  be  the  owner  of  the  pledge.  For  under  the  same 
preconditions  that  sufficed  for  creation  of  title  by  a  person  not  an 
owner,  a  pledge  right  cauld  be  created  by  a  pledge  made  by  one  who 

448 


Chap.  VIII]  THE   LAW   OF   CHATTELS  [§  66 

was  not  an  owner.  The  General  Commercial  Code  established 
for  all  Germany  the  rule  that  when  a  merchant  pledges  to  another 
articles  included  in  his  stock  that  have  neither  been  stolen  nor 
lost,  a  bona  fide  pledgee  acquires  a  right  against  which  an  earlier 
title,  or  i)ledge  right  or  other  real  right,  cannot  be  enforced  to  his 
prejudice  (§  306).  In  the  same  way,  under  the  present  Civil 
Code  a  pledge  by  any  person  not  an  owner  creates  a  right  of 
pledge  to  the  same  extent  that  a  putative  transfer  of  ownership 
by  one  not  an  owner  creates  ownership  (§§  1207-08).  The  same 
is  true  of  the  Swiss  Civil  Code. 

(B)  Statutory  Pledge  Rights.  —  Whereas  the  medieval 
law  did  not  recognize  statutory  rights  of  pledge,  but  conceded 
to  certain  persons  only  (for  example  to  a  landlord  ;  supra,  p.  441) 
an  extraordinary  right  of  distress,  there  existed  in  the  Roman  law 
a  considerable  number  of  special  statutory  pledge  rights,  notably 
that  of  a  landlord  ("  Yermieter  ")  in  the  farm  stock  of  the  hirer, 
and  that  of  a  usufructuary  lessor  ("  Verpachter  ")  in  the  produce 
of  the  land  leased.  The  native  right  of  distress  had  prepared  the 
way  for  the  reception  of  Roman  statutory  rights,  and  these 
everywhere  secured  recognition  in  Germany.  In  details  they 
were  regulated  very  differently  in  regional  legislation.  They  also 
found  important  practical  supplement  in  the  right  of  retention 
of  the  mercantile  law  (infra,  under  (V)).  But,  in  contrast  to  the 
Roman  law,  their  admissibility  was  limited  to  cases  in  which 
the  creditor  held  the  pledge ;  or  at  least  exercised  over  it  a  control 
similar  to  possession,  as  in  the  cases,  for  example,  of  an  ordinary 
or  a  usufructuary  lessor  ("  Vermieter  ",  "  Verpiichter  "),  who  had 
no  possession  under  the  common  law.  The  diversity  of  norms 
recognized  in  the  regional  systems  was  first  lessened  by  the  General 
Commercial  Code,  which  regulated  uniformly  for  all  Germany 
the  statutory  right  of  pledge  of  commission  merchants,  forwarders, 
carriers,  and  shippers  in  goods  sold  on  commissions,  forwarded, 
carried,  or  freighted.  ]Moreover,  in  its  sections  upon  maritime 
law  it  created  a  uniform  law  for  a  whole  series  of  statutory  pledge 
rights,  including  those  of  a  freighter  and  a  salvor  and  particu- 
larly the  peculiar  pledge  right  of  creditors  of  ships,  which  last  is 
independent  of  any  requirement  of  possession.  A  further  sim- 
plification of  the  pri\ate  law  was  accomplished  by  the  Bank- 
ruptcy Code,  which  (§  41)  assimilated  the  creditors  of  a  bankrupt 
to  possessory  pledgees,  conceding  them  the  most  important  right 
of  the  latter,  namely  the  right  to  require  separate  satisfaction  of 
their  claims  from  the  property.     The  differences  that  still  remained 

449 


§  66]  THE    LAW   OF   THINGS  [BoOK   II 

unaffected  by  this  provision  were  in  turn  completely  done  away 
with  by  the  present  Civil  Code,  which,  in  addition  to  the  risi:ht 
of  detention  recognized  in  the  commercial  and  the  admiralty 
law,  and  also  as  to  merchants  in  the  private  law,  gave  similar 
rights  to  ordinary  (§  559)  and  to  usufructuary  lessors  (§  581), 
and  also  to  persons  with  whom  money  or  commercial  paper  is  de- 
posited (§  233). 

(C)  The  "  TAKEN  "  Pledge.  — As  a  security  against  tort  dam- 
ages the  right  of  private  distraint  was  preserved  throughout  Ger- 
many, even  after  the  Reception,  in  the  institute  of  cattle-dis- 
traint ("  Viehpfiindung  ").  This  has  been  regulated  in  detail  by 
many  modern  statutes,  —  e.g.  in  the  Prussian  statute  concern- 
ing agricultural  and  forest  police  of  April  1,  1880.  Distraint  of 
cattle  was  permitted,  generally  speaking,  only  as  to  lands  used 
for  agriculture  or  for  forestry;  but  in  many  cases  no  actual 
damage  was  required,  a  mere  trespass  after  prohibition  being 
regarded  as  a  sufficient  ground. 

Whereas  there  ordinarily  resulted  from  the  taking  of  posses- 
sion, in  favor  of  persons  entitled  to  distrain,  merely  a  lien,  a  right 
of  detention,  with  some  effects  analogous  to  those  of  pledge  rights 
(and  comparable  to  the  detention  rights  of  the  commercial  law), 
there  was  created  by  the  distress  under  some  legal  systems  (for 
example  the  Prussian)  an  actual  pledge  right  for  the  claim  to 
damages.  The  right  of  distraint  against  the  body  ("  Personal- 
pfiindung  ")  was  more  rarely  preserved  ;  for  examjile,  in  Saxony. 
The  Civil  Code  has  reserved  to  the  law  of  the  States  the  entire 
institute  of  private  distress  (EG,  §  89).  In  the  case  of  distraint 
against  the  body  ("  Personalpfiindung  ")  the  general  principles 
relative  to  self-helj)  (§§  229-230)  of  course  apply. 

Distraint  by  judicial  process  has  been  uniformly  regulated  by 
the  provisions  of  the  Code  of  Civil  Procedure  concerning  execu- 
tion. The  creditor  acquires,  as  a  result  of  distraint  in  this  form, 
a  pledge  right  in  the  thing.  The  distraint  by  the  bailiff  of  the 
court  need  not  be  an  actual  taking  of  possession,  but  may  be 
made  visible  by  attachment  of  seals  or  otherwise. 

(2)  Content.  The  idea  of  an  exclusive  real  liability,  which  was 
already  clouded  in  the  Middle  Ages  by  the  covenant  accessory  to  a 
pledge  ("  Geloben  zum  Pfande  "),  disappeared  finally  and  com- 
pletely after  the  Reception.  According  to  tlie  modern  law  not  only 
the  pledge  was  liable,  but  also,  secondarily,  the  remaining  property 
of  the  debtor.  Thus,  precisely  as  in  Roman  law,  a  strictly  second- 
ary character,  a  dependence  upon  the  personal  claim,  became  an 

450 


CliAP.  VIII]  THE    LAW    OF    CHATTELS  [§  66 

essential  quality  of  the  chattel  pledge.  The  Civil  Code  has  pre- 
served this  principle;  and  the  same  is  true  of  the  Swiss  Code. 
But  although  on  this  point  the  alien  law  triumphed,  most  legal 
systems  ultimately  abolished  the  Roman  rights  of  "  general  "- 
pledge  which  they  had  originally  received,  thereby  reestablish- 
ing in  the  law  of  chattels,  as  in  that  of  land,  the  Germanic  prin- 
ciple of  "  speciality."  General-pledges  are  unknown  alike  to  the 
German  and  the  Swiss  Codes.  But  this  does  not  exclude  rights 
of  pledge  in  an  aggregate  ("  Inbegriff  ")  of  things.  The  prin- 
ciples of  the  native  law  retain  authority,  in  essentials,  as  respects 
the  rights  and  duties  of  the  pledgee.  Although  the  burden  of 
risk  was  everywhere  removed  from  the  creditor,  this  was  in  con- 
formity with  the  view  adopted  as  early  as  the  late  Middle  Ages. 
A  usufructuary  right  was  given  to  the  pledgee  in  the  modern 
legal  systems  only  when  such  was  expressly  conceded  to  him  by 
contract.  The  present  Civil  Code  has  also  adopted  this  view, 
although,  to  be  sure,  assuming  (§§  1213-1214)  that  when  the 
pledgee  receives  exclusive  possession  of  a  thing  that  is  by  nature 
productive,  he  is  entitled  to  the  profits  ("  Fruchtbezug  ")  in  the 
absence  of  specific  agreement  to  the  contrary.  Such  a  presump- 
tion is  not  recognized  in  the  Swiss  Code  (§  892,  2). 

(3)  Termination.  —  Most  legal  systems  (including  the  Prussian 
"  Landrecht",  the  Code  Civil,  and  the  Saxon  Code)  treated  rights 
of  chattel  pledge  as  destroyed  by  voluntary  redelivery  of  the 
pledge  to  the  debtor.  This  rule  was  consistent  with  the  posses- 
sory nature  of  the  pledge,  and  is  that  declared  by  the  present 
Civil  Code  (§  1253).  On  the  other  hand  a  delivery  of  the  pledge 
to  a  third  person  did  not  originally  result  in  the  destruction  of 
the  pledge  right ;  but  this  was  the  result,  —  in  those  legal  systems 
which  recognized  the  principle  "  hand  must  warrant  hand  ",  — 
once  a  stranger  had  acquired  the  thing  bona  fide  from  such  third 
person,  either  in  ownership  or  as  a  pledge.  For  the  pledge  right 
of  the  original  pledgee  was  thereby  necessarily  either  destroyed 
or  at  least  subordinated  in  its  effect  to  the  newly  acquired  pledge 
right  of  such  third  person,  which  was  united  with  possession. 
This  rule  was  made  general  in  commercial  law  by  the  General 
Commercial  Code  (§  306).  Under  modern  statutes  it  also  pre- 
vailed in  some  States  in  the  civil  law.  It  has  now  been  given 
general  authority  in  the  private  law  by  the  Civil  Code  (§  1208). 
On  the  other  hand,  involuntary  loss  of  possession  always  remained 
without  effect  upon  the  pledgee's  right  unless  the  ])ledge  was 
money  or  bearer  paper.     The  statutory  pledge  rights  of  the  com- 

451 


§  66]  THE    LAW   OF   THINGS  [BoOK   II 

mercial  law  are  subject  for  the  most  part  to  tlie  continuance  of 
possession ;  the  contrary  is  true  only  of  carriers  and  sliippers  of 
freiglit.  The  statutory  jiledge  rights  of  an  ordinary  or  usufructu- 
ary lessor,  or  of  an  innkeeper,  are  extinguislied  when  the  chattel 
is  removed  from  the  land  and  a  month  is  allowed  by  the  creditor 
to  pass  (whether  the  chattels  were  removed  without  his  knowl- 
edge or  despite  his  prohibition)  without  the  bringing  of  a  legal 
action  to  enforce  his  claim  for  their  return. 

(4)  Satisfaction.  —  A  sale  came  to  be  the  only  permissible  man- 
ner of  satisfying  a  claim  out  of  the  pledge.  The  complete  dis- 
placement of  the  forfeiture-pledge,  which  by  the  end  of  the  Middle 
Ages  was  steadily  becoming  less  prominent,  was  furthered  by  the 
adoption  of  the  Roman  prohibition  of  the  "  Lex  commissoria",  inas- 
much as  that  statute  made  impossible  a  forfeiture  provision  in  the 
contract.  But  whereas  the  Roman  law  always  gave  the  creditor 
the  right  to  sell  the  pledge  privately,  most  of  the  regional  systems, 
in  harmony  with  the  views  of  the  native  law,  required,  in  theory, 
a  judicial  execution  (as  in  the  Prussian  "  Landrecht  ")  or  at  least 
a  judicially  declared  right  of  sale  (as  in  the  Code  Civil  and  the 
Bavarian  "  Landrecht  ").  At  the  same  time,  the  regional  systems 
commonly  left  open  to  the  parties  the  possibility  of  agreeing  to  a 
private  sale  in  their  contract.  This  was  true,  for  example,  of  the 
Prussian  "  Landrecht  " ;  and  the  rule  was  made  general  as  to  the 
pledge  rights  of  merchants  by  the  General  Commercial  Code. 
In  very  recent  years,  however,  the  legislation  of  some  of  the 
States  (Saxony,  Hannover,  Oldenburg,  and  Brunswick)  has  again 
departed  from  these  princi])les  in  according  the  creditor  a  right 
of  private  sale  like  that  of  the  Roman  law,  although  indeed  sub- 
jecting this  to  definite  requisites  as  to  form ;  in  particular,  a  sale 
at  public  auction  is  ordinarily  required.  The  Civil  Code  has 
followed  this  Romanistic  tendency,  thereby  creating  new  law  for 
the  greatest  part  of  Germany.  It  gives  a  pledgee  the  right  of 
private  sale ;  but  the  exercise  of  this  must  conform  to  definite 
statutory  forms  (§§  1 228-1248)  in  the  interest  of  the  debtor. 

(II)  Contractual  Pledges  of  Maritime  Law.  —  (1)  The  fact  has 
already  l)een  mentioned  that  in  the  cities  of  the  Liibeck  law  the 
Germanic  law  had  already  developed  indeiicndently  a  ylcdge  of 
ships  without  transfer  of  possession.  This  was  preserved  even 
after  the  Reception,  and  many  of  the  regional  systems  constructed 
from  ideas  of  Germanic  law  a  law  of  bottomry  in  which  no  transfer 
of  corporeal  possessions  was  required,  documentary  authentica- 
tion ("  Beurkundung  ")  being  employed  as  the  act  by  which  the 

452 


Chap.  VIII]  THE   LAW   OF   CHATTELS  [§  66 

pledge  was  created.  The  transfer  of  certain  documents  referring 
to  the  ship  was  at  first  chiefly  used  for  this  purpose,  —  so,  for 
example,  in  the  Prussian  Landrecht.  In  the  1800  s,  however, 
following  the  example  of  England,  an  entry  in  a  register  was 
introduced  -  as  the  most  common  form  of  admiralty  pledge 
("  Schiffsverpfandung  ") ;  and  this  completely  displaced  the  ship- 
hypothec  of  the  common  law.  To  be  sure,  the  General  Com- 
mercial Code  did  not  succeed  in  establishing  a  uniform  system, 
for  all  Germany,  of  registry  pledges ;  and  therefore  the  maritime 
States  of  Germany  proceeded  for  a  time  by  way  of  independent  legis- 
lation. After  the  Inland  Navigation  Act  of  June  15,  1895,  had 
provided  a  provisional  regulation  for  ships  engaged  in  inland  com- 
merce, the  Civil  Code  finally  created  a  uniform  law  for  ocean  and 
inland  vessels  (§§  1259-1272).  Only  the  law  of  registry  pledges 
of  vessels  under  construction  was  left  to  State  legislation  (EG, 
§  20).  Registry  pledge  rights  under  the  imperial  law, — which 
are  available  only  in  the  case  of  vessels  entered  in  the  maritime 
register,  but  constitute  for  these  the  sole  permissible  form  of 
contractual  pledge,  —  are  subject,  in  many  respects,  to  the  prin- 
ciples of  the  law  of  land  pledges.  In  particular,  their  creation  is 
accomplished  by  a  real  agreement  ("  Einigung  ")  and  entry  in  the 
registry.  And  this  shows  that  such  pledge  rights  are,  liistorically 
considered,  essentially  a  variant  and  subordinate  form  of  the 
modern  contractual  pledge  ("  neuere  Satzung  ")  of  Germanic  law. 
(2)  A  special  form  of  pledge  in  the  maritime  law,  in  which 
Germanic  ideas  have  probably  been  of  decisive  influence,  was 
developed  in  rights  of  bottomry  ("  Bodmerei  ",  "  Boden  ",  bottom).^ 
Evidences  of  this  exist  from  the  1100  s  onward  in  Southern  France 
and  Italy.  It  was  characterized  from  the  beginning  by  the  prin- 
ciple of  pure  real  liability,  which  was  strictly  enforced  in  it,  unlike 
the  "  foenus  nauticum  "  of  the  law  of  antiquity.  In  return  for 
loans  taken  in  cases  of  maritime  necessity,  the  ship,  freight,  and 
cargo,  or  one  of  these,  was  pledged ;  that  is,  it  was  made  ex- 
clusively liable  for  the  satisfaction  of  the  creditor's  claim.  This 
was  later  adopted  in  Scandinavian  and  in  German  commerce, 
whither  it  seems  to  have  been  brought  from  INIediterranean  lands. 
It  was  exhaustively  regulated  by  the  General  Commercial  Code, 
and  belong  seven  to-day  to  the  existing  maritime  law  (HGB, 

1  Matthias,  "Das  foenus  nauticum  und  die  gesehichtliehe  Entwiekhmg 
der  Bodmerei"  (ISSl);  Pappcnheim,  "Ziir  Entstohungsg'eseliiehto  der 
Bodmerei".  in  Z.  Hand.  R..  XL  (new  ser.  XXV,  1892),  379-393;  also  in 
his  "Ilandbuch  des  Seereehts",  II  (190()),  136,  225  f<  seq.;  K.  Lchmanriy 
"Lehrbueh  des  Handelsrechts "  (2d  ed.,  1912),  560  et  seq. 

453 


§  66]  THE    LAW    OF   THINGS  [BoOK   II 

§§  G79-C99),  but  Is  actually  regarded  as  "a  moribund  institute",  ^ 
inasmuch  as  it  has  become  superfluous  under  modern  conditions 
of  commerce.  Bottomry  pledges  are  cases  of  a  pure  real  liability 
for  a  real  debt.  There  results  from  the  giving  of  the  pledge 
("  Verbodmung  ")  a  debt,  but  not  a  personal  claim  against  the 
bottomry  pledgor  which  would  entitle  the  creditor  to  bring  an 
action  against  the  debtor  for  payment.  "  The  bottomry  debt 
must,  indeed,  be  paid  when  it  is  due,  but  in  case  it  be  not  paid 
the  creditor  can  seek  satisfaction  solely  from  the  vessel  pledged 
(HGB,  §  09(3).  The  action  in  which  he  demands  this  satisfaction 
is  brought  merely  to  secure  permission  so  to  satisfy  himself,  and 
not  for  the  payment  of  the  debt ;  but  it  may  be  avoided  by  such 
pa\iiient."  ^ 

(III)  Rights  of  Pledge  in  Rights.  —  Under  the  medieval  law 
a  pledge  right  could  already  be  created  in  rights,  these  being 
conceived  of  as  incorporeal  things  and  treated  in  analogy  to  cor- 
poreal things  (supra,  p.  161).  If  a  document  was  executed  em- 
bodying such  a  legal  relation,  then  such  right  could  be  pledged  by 
manual  delivery  of  the  document  (e.g.  a  "  Rentenbrief "). 
The  conception  of  a  contractual  claim  as  the  object  of  a  right  was 
foreign  to  the  Roman  law,  and  therefore  also  equally  the  pledge 
of  rights,  but  such  pledges  nevertheless  persisted  as  a  recognized 
legal  institute  under  modern  statutes,  by  which  they  were  vari- 
ously regulated.  The  General  Commercial  Code  created  a  uni- 
form law  to  the  extent  that  it  (§  309)  did  away  with  the  formali- 
ties of  the  private  law  as  respected  the  pledge  of  order  and  bearer 
paper  when  the  pledge  was  given  between  merchants  for  a 
claim  resulting  from  mutual  trade  transactions.  It  recog- 
nized as  sufficient  the  delivery  of  possession  in  the  case  of  bearer 
paper,  or  the  delivery  of  the  indorsed  paper  in  the  case  of  order 
paper.  The  institute  has  again  received  detailed  regulation  in 
the  Civil  Code  (§§  1273-1290).  This  subjects  pledge  rights  in 
rights,  generally  speaking,  to  the  rules  of  chattel  pledges ;  it  is 
only  in  the  case  of  rights  in  alieno  solo  ("  liegenschaftliche  Gerech- 
tigkeiten  "),  which  are  treated  as  land,  that  it  lias  given  effect 
to  the  rules  of  land-pledges.  The  earlier  special  provisions  of  the 
General  Commercial  Code  for  the  pledging  of  order  and  bearer 
paper  among  merchants  have  been  replaced  by  general  provisions 
regulating  the  pledge  of  commercial  paper  generally  (§§  1292- 
1290).     The  creation  of  a  pledge  right  is  effected  in  different  ways 

'  Lehmnnn,  op.  cil.,  .502. 

2  Pappenheim  in  Z.  Hand.  R.,  XLVII  (new  ser.  XXXII,  1898),  145. 

454 


Chap.  VIII]  THE   LAW   OF   CHATTELS  [§  66 

according  to  the  nature  of  the  right  pledged  :  in  the  case  of 
rights  in  lands,  by  entry  in  the  land-book ;  in  the  case  of  rights 
embodied  in  commercial  paper,  by  a  change  of  possession  of  the 
document ;  in  the  case  of  mere  contract  claims,  by  notice  to  the 
original  debtor.  The  Swiss  Civil  Code  has  regulated  rights  of 
pledge  in  rights  similarly  in  essentials,  but  with  deviations  as 
to  details  (§§  899-906). 

(IV)  Pawnbroking.  —  Special  rules,  differing  from  the  general 
rules  of  the  law,  have  been  developed  for  the  regulation  of  pawn- 
broking.  Already  in  the  Middle  Ages,  earliest  in  Italy,  public 
pawn  shops  ("  montes  pietatis  ")  were  estabhshed  which,  as  "  pia 
corpora  ",  enjoyed  many  privileges,  notably  exemption  from  the 
Canonic  prohibition  of  interest  {infra,  §  86).  Even  at  the 
present  day  there  exist  loan-offices  which  are  public  foundations 
("  Anstalten  ")  of  the  State  and  of  the  communes;  their  legal 
status  is  regulated  by  State  legislation.  In  the  1800  s  there  was 
developed  beside  them  the  private  business  of  pawnbroking. 
Under  the  older  State  legislation  private  pawnbrokers  needed  li- 
censes from  the  government.  The  Industrial  Code  established  the 
theoretical  freedom  of  the  business,  but  in  consequence  of  the  evil 
experiences  resulting  therefrom  the  industry  was  again  subjected 
to  the  license  system  in  1879  by  an  amendment  to  the  Code ; 
and  this  was  extended  in  1900  to  agents  ("  Pfandvermittler  "). 
Among  the  many  important  special  provisions  of  State  legisla- 
tion those  are  most  important,  in  the  law  of  things,  which  pre- 
scribe the  registration  of  all  pledges  in  a  register  kept  according 
to  prescribed  forms,  and  which  require  the  delivery  of  a  pawn 
ticket  for  every  pawn.  Under  many  statutes  (e.g.  the  Prussian 
Act  of  March  17,  1881)  an  entry  in  the  pledge  register,  in  addition 
to  a  real  agreement  and  manual  delivery,  is  essential  to  the  crea- 
tion of  the  pledge  right.  Special  rules  also  exist  concerning  the 
sale  of  pawns,  and  the  broker's  obligation  to  preserve  them. 
Further,  some  statutes  have  adopted  the  principle  of  pure  real 
liability ;  and  many  even  impose  upon  the  pledgee  the  entire  risk 
of  destruction.  A  right  to  have  the  pledge  redeemed  may  be 
given  to  the  public  loan-offices  by  State  legislation.  The  Swiss 
Civil  Code  has  provided  a  number  of  general  rules  (§§  907-911) 
applicable  even  to  the  "security-pawn  "  ("  Versatzpfand  "),  —  that 
is,  to  this  form  of  chattel  pledge  which  is  given  to  public  or  pri- 
vate loan-offices  to  secure  the  payment  of  money  loans  ;  but  it  has 
left  to  the  cantons  (§  915)  the  regulation  of  pawnbroking  as  an 
industry  under  the  public  law. 

455 


§  66]  THE    LAW    OF   THINGS  [B    OK    II 

(V)  Merchants'  Rights  of  Detention,  —  Statutory  rights  of 
pledge  were,  as  has  been  remarked,  unknown  to  the  medieval 
hiw.  On  the  other  hand,  in  certain  cases,  and  subject  to  the  pre- 
condition of  what  was  called  "  Konnexitiit  "  ("  lien  nexus  ")  it 
gave  in  place  of  these  a  right  of  detention.  So,  for  example,  to 
the  artisan  who  had  a  claim  for  labor,  a  right  to  detain  the  chattels 
delivered  to  him  for  alteration ;  to  the  shepherd,  a  right  to  detain 
for  his  wages  the  animals  intrusted  to  his  care ;  to  the  householder, 
a  right  to  retain  possession  for  the  improvements  which  he  had 
made  on  the  premises ;  and  so  on.  At  the  same  time  it  was  a 
rule  that  a  pledgee  entitled  to  a  counter  claim  might  not  only 
refuse  to  deliver  the  chattel  pending  his  satisfaction,  but  might 
also,  under  some  circumstances,  himself  repledge  the  chattel  for 
the  amount  of  his  claim,  in  order  to  cover  himself  from  damages 
due  to  the  conduct  of  his  debtor.  With  this  step  the  right  of 
detention  came  to  approach  an  actual  pledge  right.  Neverthe- 
less, the  native  law  was  abandoned  after  the  Reception  in  favor 
of  the  corresponding  Roman  institute,  which  was  relatively  far 
less  developed  and  which  never  entitled  one  to  more  than  a  right 
of  detention.  On  the  other  hand,  there  persisted  among  mer- 
chants, as  to  transactions  between  themsehes,  customs  which  had 
wider  effects.  These  customs  led  to  the  development  of  a  special 
mercantile  right  of  detention,  evidences  of  which  exist  from  the 
1500  s  onward.  This  conquered  an  independent  field  in  Germany 
beside  the  detention  rights  of  ordinary  citizens,  and  was  regu- 
lated (variantly,  to  be  sure)  in  State  statutes.  Sometimes  it  was 
regulated  as  an  express  statutory  right  of  pledge ;  sometimes  it 
was  given  effects  analogous  to  those  of  pledge  rights,  at  least 
in  case  of  the  bankruptcy  of  the  debtor.  The  requirement  of 
"  Konnexitiit  "  was  everywhere  abandoned.  These  legal  differ- 
ences were  done  away  with  by  the  General  Commercial  Code ; 
though  it  is  true  that  this,  while  attributing  to  such  mercantile 
rights  of  detention  effects  analogous  to  those  of  pledge  rights, 
did  not  declare  them  outright  to  be  pledge  rights  (as  was  originally 
the  intention  of  the  legislators),  —  thereby  i)utting  in  doubt  the 
actual  legal  nature  of  the  institute.  The  new  Commercial  Code 
has  taken  the  same  position  (§§  369-372).^  The  detention  right 
of  the  Civil  Code  (§  273)  has  no  kinship  with  a  pledge  right; 
it  is  neither  a  personal  nor  a  real  right,  but  a  mere  defense 
("  Einrede  ",  plea)   against  a  personal  or  real  claim.^    On  the 

'  Lehmann,  op.  cit.,  576. 
2  Crome,  "System",  I,  546. 

456 


Chap.  VIII]  THE   LAW   OF   CHATTELS  [§  66 

other  hand,  the  detention  right  of  the  Swiss  Civil  Code  (§§  895- 
898)  corresponds  to  that  of  the  German  Commercial  Code: 
the  creditor,  in  case  the  debtor  does  not  fulfill  his  obliga- 
tion, may  sell  the  chattel  detained  as  though  it  were  a  possessory 
pawn. 


457 


§67] 


THE    LAW    OF    OBLIGATIONS 


[Book  III 


BOOK   III.     THE   LAW   OF   OBLIGATIONS 


Chapter   IX 


GENERAL  PRINCIPLES 


§67. 


Introduetory    Sketch    of    the 
General  Development  of  the 
Law  of  Obligations. 
I.    The  Older  Law. 
II.    The  Town  Law. 

III.   The  Roman  Law. 


Topic  1.  Fundamental  Concep- 
tions OF  THE  Law  of  Obli- 
gations 

§  68.    Legal    Duty    and    Liabihty, 
generally. 

I.    Perception    of    the    Dis- 
tinction between  Legal 
Duty  and  Liability. 
II.    Legal  butv. 

1.  The  legal  duty  of  the 

obhgor. 

2.  The  legal  duty  of  the 

obUgee. 

3.  Relation   of   the  ob- 

hgor's    and    obh- 
gee's  duties. 
III.    LialnUty. 
§  69.    Varieties  of  Liability. 

I.    Real  and  Personal  Lia- 
bihty. 
II.    Real  Liability. 

1.  Chattel  pledges. 

2.  Pledge  of  lands. 
III.    Personal  Liability. 


1.  The  earliest  period. 

(A)  Possessory 

pledge  of  the 
body  (hostage- 
ship). 

(B)  Non-possessory 

or  "free" 

pledge  of  the 
body. 

2.  Second   stage  of   de- 

velopment. 
(A)  Corporal   lial)il- 
ity  of  the  sure- 
ty. 

458 


(B)  Property-Uabil- 
ity  of  the  sure- 
ty. 
§  70.    Legal  Duty  and  Liabihty  in 
the  ISlodern  Law. 
I.    The       Common       Law 
Theory       of        Legal 
Duty. 
II.    Present  Existence  of  the 
Distinction      between 
Legal  Duty  and  Lia- 
bility. 

Topic  2.    The  Historical  Origins 
OF  Obligations 

§71.  Obligational  Con  tracts  : 
Forms  of  Obligational  and 
Liabihty  Transactions  in  the 
Old  Law. 

I.  Formalism  of  Trans- 
actions creating  Legal 
Duties  and  Liabihties, 
generally. 
Special  Forms  of  Liabil- 
ity Transactions. 

1.  The  pledge  of  faith. 

2.  The'Wadiatio."  The 
wed-contract. 

The  Real  Contract. 
Formal    Acts    that   eon- 
tril)uted  to  the   Con- 
tract    some     Special 
Effect. 
§  72.    The  Conclusion  of  a  Contract 
in  Modern  Law. 
I.    The  Principle  of  Infor- 
mality. 
Except  idns  to  the  Prin- 
ciple of  Iiiformahty. 
\.    Written  form. 

2.  Itednction  to  writing 
in  court  or  before 
a  notary. 

3.  Confirmation  of  the 
contract. 


II. 


Ill 
IV 


IL 


Chap.  IX] 


GENERA.L   PRINCIPLES 


[§67 


§  73.    Unilateral  Promises. 
I.    The  Older  Law. 

1.  Public  offers. 

2.  Binding  force  of  an 

offer. 
II.    The  Modern  Law. 

Topic  3.    The  Content  of   Obli- 
gations 

§  74.   Nude  Obligational  Promises. 

I.    The  Older  Law. 

II.    The  Alodern  Law. 

§  75.    Contracts  for  the  Benefit  of 

Third  Persons. 

I.    The  Older  Law. 

II.    The  Modern  Law. 

Topic  4.     Performance  and  Non- 
performance OF  Obligations 

§  76.    Contractual     Penalties     and 
Damages. 
I.    The  Older  Law. 

1.  Penalties  for  default 

in  the  earliest  law. 

2.  The  medieval  law. 
II.    The    Modern    Develop- 
ment. 

§  77.    Fault  and  Accident  in  the  Law 
of  Contract. 
I.    The  Older  Law. 

1.  General  principle. 

2.  Following  property. 

(A)  Liability  of 

bailees. 

(B)  Liabilityof  some 

persons        for 
others. 


II.    The    Modern    Develop- 
ment. 

Topic  5.    Assignments  of  Obliga- 
tions BY  Obligee  and  Obligor 
§  78.    Assignment     of     Claims     by 
Obligee. 
I.    The  Older  Law. 

1.  Transfer    by   juristic 

act. 

2.  Statutory  transfers. 
11.    The    Modern    Develop- 
ment. 

§  79.    Assignment  of  Obhgations  by 
Obligor. 

I.    The  Older  Law. 
II.   Modern  Development. 

Topic  6.     Cases  of  Several  Debt- 
ors AND  Creditors 

§  80.    Plurahty  of  Creditors. 

I.    Severable        Credits,  — 
Claims    severable  pro 
rata. 
11.    Inseverable  Co-credits. 

1.  Co-credits  held  in  so- 

lidum. 

2.  Co-credits     for     un- 

divided shares. 

3.  Co-credits      held     in 

' '  collective  hand." 
§  81.   Plurality  of  Debtors. 

I.    Several  Obligations. 
11.    Inseverable      Co-obliga- 
tions. 

1.  Collective         obliga- 

tions. 

2.  Obligations  in   "col- 

lective hand." 


§  67.  Introductory  Sketch  of  the  General  Development  of  the 
Law  of  Obligations.  (I)  The  Older  Law.  —  It  may  be  safely 
assumed  that  the  primitive  Germans  ("  Germanen  "),  like  other 
peoples  in  a  primitive  stage  of  civilization,  lived  under  conditions 
in  which  non-credit  transactions  alone  were  known.  The  scanty 
trade  of  the  time  was  accomplished,  for  the  most  part,  under 
the  forms  of  barter.  Even  sale  was  a  simultaneous  exchange  of 
performance  and  counter  performance.  Contract  and  non-credit 
or  "  spot"  transactions  were  not  as  yet  notionally  distinguished. 
A  postponement  of  performance  to  a  future  time  was  unkno^Aii ; 
indeed,  it  was  inherently  impossible  in  the  absence  of  a  public 
power  that  protected  property  interests.  Nevertheless,  from 
the  earliest  times  obligational  effects  might  be  associated  with 
such  spot  transactions  ;  ])articularly  if  it  eventually  appeared  that 

459 


§  67]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

the  thing  sold  was  claimed  by  a  third  person  as  belonging  to  him. 
But  "  in  such  case  the  person  damaged  (the  purchaser)  regarded 
the  damage  done  to  his  property  in  the  same  way  as  he  regarded 
any  damage,  as  for  example,  that  of  theft  or  robbery."  ^  He 
therefore  resorted,  here  also,  to  the  sole  means  that  was  always 
open  to  him  in  such  cases,  —  namely,  self-helj).  By  means  of 
feud  and  blood-revenge  he  secured  for  himself  satisfaction  and 
damages. 

The  oldest  obligations  were  therefore  the  outcome  of  misdeeds. 
Whoever  violated  the  law  was  forced  by  the  instrumentality  of  the 
criminal  law  to  do  penance  for  his  misdeed  ;  an  action  was  brought 
against  him,  judgment  was  passed  upon  him,  and  if  he  disregarded 
the  complaint  or  the  judgment  he  was,  as  a  last  resort,  declared 
to  be  outside  the  peace.  Thus,  as  a  matter  of  fact,  "  the  whole 
law  of  obligations  entered  legal  life  from  the  side  of  delicts."  ^ 

Beside  this  oldest  obligation  ("  Schuld-  ")  law,  however,  which 
was  a  penal  ("  Straf-  ")  law,  there  gradually  appeared  a  private 
law  of  obligations,  in  which  tortious  acts  were,  as  such,  no  longer 
the  exclusive  origin  of  legal  obligations,  a  free  will  entering  also 
into  their  basis.  Partly  as  a  further  development  of  spot  transac- 
tions, and  partly  from  a  form  of  agreement  ("  Willenserkliirung  ") 
that  was  perhaps  first  employed  in  judicial  procedure  and  later 
extra-judicially,  there  was  developed  a  peculiar  system  of  debt 
("  Schuld-  ")  contracts  which  was  adapted  to  the  needs  of  trade 
{infra,  §  71). 

The  law  of  contract  remained  scanty,  to  be  sure,  for  centuries 
as  compared  with  the  law  of  things.  In  the  sources  of  the  Frankish 
period  only  very  few  contracts  are  mentioned,  and  these  few  are 
in  large  part  either  institutes  of  the  law  of  things  (as,  for  example, 
leases  of  land)  or  else  manifestly  of  Roman  origin  (like  the  "  cau- 
tiones  ",  "  mandata  ",  "  cessiones  "  of  the  formularies).  This 
meagerness  of  forms  did  not  indicate  a  general  weakness  of  the 
private  law  in  the  early  Middle  Ages ;  it  necessarily  resulted  from 
the  paucity  of  problems  that  fell  to  the  law  of  contract  during  the 
dominance  of  the  economic  and  social  system  of  that  time.  It 
was  "  the  necessary  consequence  and  counterpart  of  a  legal  order 
in  which  an  unusually  rich  and  subtly  developed  private  law 
confronts  us  in  other  legal  fields."  ^ 

Two  points  demand  attention  here.  The  first  is  the  fact  that 
there  existed  even  at  that  time  the  same  problems  that  had  to  be 

»  Heusler,  "Tnstitutionen",  II,  230.  ^  Ibid.,  231. 

«  Huber,  "Schw.  Privatrecht",  IV,  901. 

460 


Chap.  IX]  GENERAL   PRINCIPLES  [§  67 

solved  in  the  classic  Roman  and  in  the  modern  law  of  obligations, 
namely  the  regulation  of  the  purely  economic  relations  of  individ- 
uals, as  subjects  of  rights,  with  one  another,  and  the  distribution  of 
values  in  the  form  of  credits  and  debts  among  all  persons  partici- 
pating in  legal  life.^  These  problems  were  not  solved  in  the  early 
Middle  Ages  by  a  system  of  contracts,  —  by  regulating  purely 
individual  legal  relations  between  mutual  and  equal  parties  to 
agreements ;  but,  primarily,  through  a  multitude  of  complicated 
real  and  personal  rights  of  land-lordship  that  had  grown  out  of 
and  were  accordant  with  an  agricultural  economy.  Many  legal 
relations  which  in  periods  of  a  predominant  money  economy  and 
generally  "  mobilized  "  property  values  appear  solely  in  the  form 
of  debts  and  credits,  assumed  at  that  time  the  form  of  real  rights 
in  the  soil,  or  of  personal  privileges  against  dependent  fellow- 
members  of  society.  The  procurement  of  nourishment  and  cloth- 
ing, for  example,  which  in  times  of  greater  economic  development 
is  the  source  of  countless  obligations  of  daily  life,  was  mainly 
realized,  among  the  rural  classes  of  the  population,  —  in  so  far  as 
it  was  not  effected  by  independent  production,  —  b}'  means  of 
tributes  ("  Leistungen  ")  rendered  by  the  occupants  of  dependent 
lands  (slaves,  serfs,  and  villein  rentalers)  to  landowners  entitled 
to  feudal  tributes  and  services.  And  these  tributes  satisfied, 
almost  perfectly,  the  ends  which  are  realized  in  a  money  economy 
through  free  contracts  for  labor  and  service.  The  fact  that  even 
in  the  prosperous  economic  system  of  the  towns  the  demands  of 
capital  for  credit  were  long  satisfied  in  the  form  of  real  rights,  — 
capital  rents  ("  Renten  "),  —  is  particularly  significant  in  this 
connection.  How  this  tendency  of  the  medieval  law  toward  the 
"  materialization  "  ("  Verdinglichung  ")  of  rights  led  men  to 
treat  as  incorporeal  things  rights  that  secured  a  permanent  usu- 
fruct in  things,  and  how  rights  in  rights  and  the  so-called  "  ius  ad 
rem  "  were  developed  into  peculiar  institutes  lying  between  real 
and  contract  rights,  has  already  been  discussed  (supra,  pp.  1G8, 
162  et  seq.). 

To  this  was  added  the  fact  that  a  free  exercise  of  individual  will, 
without  which  no  considerable  development  of  the  law  of  contract 
is  conceivable,  was  in  those  times  possible  only  within  narrow 
limits.  Business  transactions  ("  Geschiifte  ")  were  not  only  rare, 
but  conformed  strictly  in  both  form  and  content  to  traditional 
lines.  There  was  rarely  any  opportunity  to  adopt  special  rules 
for  a  particular  case,  or  for  new  circumstances  of  fact ;  the  old 
1  Ruber,  "  Schw.  Privatrecht  ",  IV,  901. 
461 


§  67]  THE   LAW   OF  OBLIGATIONS  [BoOK  III 

forms  handed  down  by  the  customary  law  amply  sufficed  for  needs 
that  did  not  vary.  IMoreover,  the  transactions  involved  were  in 
great  part  not  concluded  by  individuals,  but  transactions  to  which 
groups,  —  such  as  the  members  of  a  family,  the  associates  of  a 
mark,  the  brothers  of  a  craft,  etc.,  —  were  necessary  parties; 
and  this  cooperation  of  many  persons  was  another  strong  surety 
for  the  preservation  of  the  traditional  law. 

(II).  The  Town  Law.  —  Owing  to  the  increasing  prosperity  of 
city  life,  however,  a  fundamental  change  had  already  set  in  at  the 
meridian  of  the  Middle  Ages,  and  long  before  the  reception  of  the 
Roman  law.  It  was,  primarily,  the  commerce  among  merchants 
("  Handel  ")  that  was  becoming  estalilished  in  the  cities  which 
everywhere  produced  an  active  general  traffic  ("  Verkehr  "),  and 
with  this  necessarily  a  trade  law  ("  Verkehrsreclit  ")  that  gave 
heed  to  the  new  economic  conditions.  Town  law  and  merchants' 
("  Kaufmanns-")  law  became,  in  large  i)art,  identical  concep- 
tions, and  thenceforth,  in  Germany  as  elsewhere,  the  mercantile 
("  Handels-")  law  played  within  the  fields  of  contract  and  part- 
nership law  the  role  of  a  forerunner  of  the  general  private 
law,  altliougli  this  followed  only  slowly  and  with  hesitancy ;  until 
finally,  in  our  day,  the  principles  of  the  commercial  law  have 
become  authoritative  in  the  general  private  law.  In  the  eastern 
parts  of  Germany,  especially  in  the  districts  on  the  East  Sea  whose 
culture  was  determined  by  their  relations  with  the  Hanseatic 
cities,  legal  development  was  based  upon  old  native  ideas  and  was 
in  many  respects  independent.  But  the  West  and  the  South  of 
Germany  soon  fell  under  the  dominant  control  of  a  general 
European  commercial  ("  Verkehrs- ")  law  which  was  first  de- 
veloped in  Italy,  the  country  of  the  richest  trade  by  land  and  sea 
and  the  leader  in  the  development  of  legal  practice  and  theory. 
It  originated  in  a  union  of  Germanic  ideas  acclimated  among 
the  Lombards  with  elements  of  Roman  law,  and  was  carried  thence 
into  international  commerce  ("  Handelsvcrkehr  ")  through  the 
international  fairs  of  Champagne,  the  Netherlands,  and  France, 
creating  thus  an  international  uniformity  of  commercial  law  which 
has  not  again  been  realized  down  to  the  present  day.  The  largest 
and  most  important  part  of  this  law  lived  on  both  in  Germany  and 
elsewhere  ;  not,  however,  without  modification  and  further  develop- 
ment, which  was  eff'ectcd  in  modern  times  under  the  emancipating 
influence  of  Holland,  France,  and  England.  In  this  way  the 
whole  of  the  modern  maritime  and  commercial  law,  the  law  of  com- 
mercial ])aper,  the  law  of  copyright,  and  above  all  the  law  of  bills 

462 


Chap.  IX]  GENERAL   PRINCIPLES  [§  68 

of  exchange,  insurance,  and  commercial  partnerships,  which  is 
still  fundamentally  Germanic  in  basis  and  Roman  to  but  a  very 
slight  extent  has  kept  a  strikingly  modern  character. 

(Ill)  The  Roman  Law.  —  Even  greater,  however,  was  the 
victory  gained  by  the  Roman  law,  through  the  Reception,  where 
the  problem  was  not  the  detailed  regulation  of  modern  conditions 
unknown  to  the  ancient  world,  but  general  and  fundamental  rules 
of  the  law  of  obligation,  and,  in  particular,  the  theoretical  develop- 
ment of  the  typical  forms  of  contract.  The  Reception  was  there- 
fore more  complete,  and  more  pregnant  with  consequences,  in  these 
fields  than  in  any  other  part  of  the  private  law ;  it  accomplished 
here  its  "  most  striking  and  most  universal  "  ^  feat,  —  one  which 
was  not  limited  to  that  time  or  place.  True,  the  reception  of  the 
Roman  law,  here  again,  merely  completed  and  carried  to  ultimate 
victory  changes  that  at  many  points  had  already  begun  within 
the  native  law.  And  although  the  contract  law  of  modern  times 
and  of  the  present  day  is  Roman  in  its  essential  outline,  and  will 
remain  so,  nevertheless  many  Germanic  ideas  have  maintained 
themselves  therein,  not  alone  within  the  special  fields  of  commercial 
law  above  mentioned,  and  in  some  others  of  the  civil  law,  but  also 
even  in  fundamental  legal  theory. 

Topic  1.    Fund.\mental  Conceptions  of  the  Law  of  Obli- 
gations ^ 

§  68.  Legal  Duty  and  Liability  Generally.  (I)  Perception  of 
the  Distinction  between  Legal  Duty  and  Liability. — In  the  theory 
of  the  Romanistic  common  law  that  prevailed  until  recent  times 

1  Gierke  in  Holizendorff-Kohler,  152. 

2  Val  de  Lievre,  "Launegild  und  Wadia,  eine  Studie  aus  dem  Lango- 
bardischen  Rechte"  (1877);  Frankcn,  "Geschichte  des  franzosisehen 
Pfandrechts,  I:  Das  franzosisehe  Pfandreeht  im  Mittelalter"  (1879, 
only  vol.  published);  v.  Amira,  "  Nordgermanisches  Obligationenreeht ", 
Vol.  1:  " Altschwedisehes  Obligationenreeht"  (1882),  Vol.  2:  "West- 
nordisches  Obligationenreeht"  (189.5);  Puntschart,  " Schuldvertrag  und 
Treugelobnis  des  sachsichen  Rechts  im  Mittelalter,  ein  Beitrag  zur 
Grundauffassung  der  altdeutsehen  Obligation"  (1896);  v.  Schwind, 
"  Wesen  und  Inhalt  des  Pfandrechts"  (1899) ;  Egger,  "  Vermogenshaf tung 
und  ITypothek  naeh  friinkisehem  Recht  ",  no.  69  (1903)  of  Gierke's  "Unter- 
suehungen";  Frhr.  v.  Schwerin,  "Die  Treuklausel  im  Treugelobnis",  in 
Z2.  R.  G.,  XXV  (1904),  323-344;  Puntschart,  "Treuklausel  und  Hand- 
treue  im  deutsehen  Gelobnisrecht ",  in  same,  XXVI  (1905),  165-194; 
Rintelen,  "Sehuldhaft  und  Einlager  im  Vollstreekungsverfahren  des 
altniederlandischen  und  siichsischen  Rechts"  (1908),  with  which  com- 
pare Frhr.  v.  Schwerin  in  Z^.  R.  G.,  XXIX  (1908),  464-468,  and  Korsch 
in  Krit.  Vj.  G.  R.  W.  (L,  3d  ser.  XIV,  1912).  128-142;  Puntschart, 
" '  Pfandrechte  an  eigener  Sache'  nach  deutschem  Reiehsrecht ",  in 
"Festschrift  fiir  K.  v.  Amira  zu  seinem  60.   Geburtstage"  (1908),  103- 

463 


§  68]  THE   LAW   OF   OBLIGATIONS  [Book  III 

obligations  were  explained  as  "  legal  relations  which  consist  in  the 
duty  of  an  obligor  (*  Schnldner  ',  debtor)  to  perform  (pay)  some- 
thing of  value  to  an  obligee  (creditor)."^  That  theory  imagined 
this  to  be  a  definition  of  the  concept  which  was  accurate  under  all 
circumstances,  independently  of  time  and  locality.  It  has  since 
become  clear,  however,  that  the  theory  was  here  in  error;  it  was 
too  much  influenced  by  the  form  of  the  classic  Roman  and  the 
common  law.  Even  some  Romanists  raised  doubts.  Brinz, 
especially,  attacked  the  prevailing  view ;  he  found  the  essence  of 
an  obligation  to  be  the  subjection  of  the  obligor  to  judicial  execu- 
tion ;  in  other  words,  the  liability  of  the  person  and  the  projjcrty 
of  the  debtor  in  case  of  non-payment  of  the  debt.  A  decisive 
advance  was  first  made,  however,  when  Karl  von  Amira  adduced 
indisputable  proof  from  the  old  Swedish  and  old  Norwegian 
sources  that  in  them  the  law  of  obligations  was  based  upon  the 
distinction  between  the  two  conceptions  of  legal  duty  ("  Schuld  ") 
and  liability  ("  Haftung  ").  An  understanding  of  the  Germanic 
law  of  obligations  was  first  made  possible  by  this  discovery.  For 
the  same  principles  which  Amira  discovered  in  the  old  Scandina- 
vian law  were  later  established,  by  him  and  by  other  scholars 
(Puntschart,  von  Schwind,  Egger,  Gierke,  and  others),  in  the  case 
of  South  Germanic  legal  systems,  and  notably  in  large  groups  of 
medieval  Germanic  legal  systems.  Nor  was  the  significance  of  the 
new  theorv  limited  to  this.     It  was  able  to  show  that  the  difference 


175;  IK  Amira,  "Der  Stab  in  der  germanischen  Rechtssymbolik"  (supra, 
p.  11),  151-157  ;  Gierke,  "  Schuld  und  Haftung  im  iilteren  deutschen  Reeht, 
insbesondere  die  Form  der  Schuld-  und  Haftungsgeschjifte  ",  no.  100  (1910) 
of  Gierke's  "Untersuchungen"  ;  with  which  compare  v.  A7nira  in  Z^.  R.  G., 
XXXI  (1910),  485-.500;  Slrnhal,  " Schuldiibernahme"  (1910),  also  in 
Iheri7ig's  J.  B.,  LVII  (2d  ser.  XXI,  1910),  231-494;  Lenz,  "Zur  Gesehichto 
der  germanischen  Schuldkneehtsehaft ",  in  Inst.  5st.  G.  F.,  XXXI  (1910), 
521-.537;  V.  Amira,  "Wadiation",  in  K.  Bayer.  Akad.  Wiss..  Sitz.  Ber., 
1911,  2d  Abhandlung;  Herbert  Meyer,  "Zum  Ursprung  der  Vermogens- 
haftung",  in  "Festschrift  fiir  O.  (iicrke"  (1911),  973-1005;  Frhr.v. 
iS'c/iwerin,  "Schuld  und  Haftung  im  geltenden  Recht"  (1911),  with  which 
compare  Puntschart  in  Z.  ges.  H.  R.,  LXXI  (3d  ser.  XII,  1912),  297-326; 
V.  Gierke,  "  Schuldnachfolge  und  Haftung  insbesondere  kraft  Vermcigens- 
iibernahme",  in  the  "  Festsclu*if t  der  Berliner  juristischen  Fakultat  fiir 
F.  V.  Martitz"  (1911),  33-80 ;  Petcrka,  "Das  offene  zum  Scheine  Ilandeln" 
(c/.  p.  244  supra),  13-17;  Planitz,  "Die  VermogensvoUstreckung  im 
deutschen  mittelalterlichen  Recht,  ler  Band:  Die  Pfiindung"  (1912); 
Puntschart,  art.  "Biirgschaft"  in  Hoop's  "  Reallexikon",  I  (1912),  3.5()- 
357;  Burh,  "Die  Ubertragbarkcit  \nn  Forderuiigen  im  deutschen  mit- 
telalterlichen Recht",  no.  113  (1912)  of  Gierke's  "  Untersuchungen  ",  60 
ctseq.;  Parlsch,  "Griecliisches  Biirgschaftsrecht,  ler  Band:  Das  Recht 
des  altgriechischen  Gem('iii(lestaat(>s"  (1909);  Knschaker,  "Babylonisch- 
assyrisches  Biirgschaflsrecht,  ein  Beitrag  zur  Lehre  von  Schuld  und  Haf- 
tung", (Festschrift)  (1911). 

1  This  is  Dernburg's  definition,  "Pandekten",  II  (1886),  1. 

4G4 


Chap.  IX]  GENERAL  PRINCIPLES  [§  68 

between  duty  and  liability  was  not  something  specifically  national 
or  "  historical  ",  but  that  there  was  here  involved  "  a  logical  dis- 
tinction "  that  was  "  indispensable  to  every  law  of  obligations  ", 
although  it  might  be  more  consistently  developed  in  the  law  of 
one  country  than  in  another.^  This  view  found  surprising  con- 
firmation when  exhaustive  investigations,  based  upon  the  founda- 
tion laid  by  the  Germanist  school,  made  clear  the  existence  of  this 
distinction  between  legal  duty  and  liability  in  the  old  Greek  and 
Babylonian  law.  That  it  is  not  absent  in  the  law  of  the  present 
day  has  recently  received  significant  recognition,  and  from  the  side 
of  the  Romanistic  school.  Of  course,  many  objections  have  been 
raised  against  all  this.  And  even  as  regards  the  older  Germanic 
law,  and  among  the  supporters  of  the  new  theory,  there  are  very 
important  differences  of  opinion.  These  appeared  with  extreme 
clearness  when  Otto  von  Gierke  undertook  to  give  the  first 
detailed  and  comprehensive  statement  of  the  Germanic  system 
of  "  Schuld  "  and  "  Haftung  ",  —  not  without  expressly  explaining 
that  there  cannot  yet  be  talk  of  a  complete  solution  of  the  problem. 
What  is  said  in  the  following  pages  is  only  intended  to  give  a  sum- 
mary, as  judicious  as  possible,  of  the  present  results  of  investiga- 
tion, seeking  to  choose  what  appears  best  established.  It  is  to  be 
hoped  that  the  continuation  of  Gierke's  "  Germanic  Private  Law  ", 
as  well  as  the  work  contemplated  by  von  Puntschart  on  the  law  of 
"  Schuld  "  and  "  Haftung  "  in  the  oldest  South  Germanic  legal 
records,  —  and  other  investigations  which  certainly  will  not  be 
lacking,  —  may  clear  up  the  many  obscurities  still  remaining. 
It  is  also  to  be  hoped  that  we  shall  soon  receive  from  Amira's  hand 
the  conclusion  of  his  work  on  the  North  Germanic  law  of  obliga- 
tions. 

(II)  Legal  Duty.  —  "  Schuld  ",  in  the  broadest  sense  of  the 
word,  signifies  "a  legal  duty"  ("rechtliches  Sollen ")•  And  there- 
fore Germanic  tongues  used  the  word  "  Schuld  "  (from  the  verb 
"  skulan  "),  in  this  quite  general  sense,  to  indicate  the  existence 
of  any  legal  duty.  A  legal  "  duty  "  ("  Sollen  ")  however,  means  — • 
as  the  German  legal  terminology  of  the  ^Middle  Ages  shows  —  a 
duty  legally  defined  or  certain  ("  rechtliches  Bestimmtsein  "). 
"  In  the  very  word  '  Schuld  ',  in  the  sense  of  '  sollen  ',  there  is 
etymologically  implied  the  idea  of  something  legally  determined ; 
the  relationship  appears  as  one  strictly  of  legal  definition  ('  Be- 
stimmungsverhaltnis  ')." 

»  V.  Amira,  in  Z^.  R.  G.,  XXXI  (1910),  486. 

2  Puntschart  in  Z.  Hand.  R.,  LXXI  (3d  ser.  XII,  1912),  303. 

465 


§  68]  THE    LAW   OF   OBLIGATIONS  [BoOK   III 

(1)  TJw  legal  duty  of  the  obligor  {"  Schuldnerschuld  ").  Such  a 
definite  legal  duty  ("  rechtliches  Sollen  "  =  "  rechtliches  Be- 
irtimmtsein  "  =  "  Schuld  ")  exists,  above  all,  on  the  part  of  that 
person  whom  we  designate  in  our  j)resent  legal  terminology  the 
obligor  ("  Schuldner  ''),  and  with  whom  we  contrast  the  obligee 
("  Cdiiubiger  ").  Indeed,  when  we  speak  of  a  legal  obligation  we 
think  almost  exclusively,  in  the  first  place,  of  the  obligor.  The 
obligation  on  the  part  of  the  obligor  consists  in  a  legal  duty  to 
})erf()rm  ("  Leistensollen  ").  This  duty  to  perform  is  the  legal 
order  ("  Bestimmung ")  to  undertake  a  certain  performance 
("  Leistung  "),  as  a  result  of  which  undertaking  there  is  created  a 
relation  imposed  by,  consistent  with,  and  protected  by  the  law. 
If  an  obligation  is  involved  that  was  created  by  contract  (a 
"  Schuldvertrag  "),  then  the  end  of  such  contract  is  found  in  the 
duty  to  perform ;  for  that  reason  the  contract  is  concluded.  Per- 
formance is  the  positive  content  of  the  debtor's  contract.  In  case 
of  such  contract  there  exists,  further,  as  a  negative  command,  an 
obligation  of  "  abstention  "  ("  Haltensollen  ") ;  that  is,  an  obliga- 
tion to  do  nothing  that  could  in  any  way  make  impossible  per- 
formance of  the  contract.  In  particular,  the  obligor  may  not  in 
any  way  either  evade  the  contract  or  undo  the  condition  created 
by  its  performance.  These  two  obligations  of  abstention  and 
of  performance  frequently  coincide,  but  not  necessarily.  This  ap- 
pears in  the  case  of  an  obligation  subject  to  a  condition  prece- 
dent. Here  there  exists  a  duty  of  abstention  from  the  moment 
a  contract  is  concluded ;  on  the  other  hand  the  duty  to  perform 
arises  only  upon  the  taking  effect  of  the  condition  precedent,  and 
therefore  under  some  circumstances  (namely,  when  such  condition 
is  not  satisfied)  never. 

(2)  TJie  legal  duty  of  the  obligee  ("  Gliiubigerschuld  ").  Just  as 
the  word  "  Schuld  "  raises  in  our  minds,  in  the  first  place,  the  con- 
ception of  the  obligor's  legal  duty,  so  in  the  original  meaning  of 
the  word,  as  a  matter  of  usage,  a  "  Schuld  "  was  first  conceived  of 
as  a  duty  to  perform.^  But  modern  Germanistic  legal  theory  has 
established  the  important  and  pregnant  fact  that  in  both  the  law 
and  the  speech  of  the  primitive  Germans,  and  even  of  the  later 
Germans,  the  obligee  ("  Gliiubiger  ")  was  also  thought  of  as  a 
"  Schuldner  ",  and  was  so  designated.  This  was  possible  because 
the  conception  of  "  Schuld  "  was  based  upon  the  wholly  general 
idea  of  a  duty  legally  prescribed.  Even  in  our  sense  of  the  word 
there  is  a  duty,  legally  determined,  on  the  part  of  the  creditor: 

'  Puntschart  in  Z.  Hand.  R.,  LXXI  {.3d  scr.  XII,  1912),  304. 

4GG 


Chap.  IX]  GENERAL   PRINCIPLES  [§  68 

equally  as  respects  him  there  results  from  the  obligational  relation 
a  legal  command,  namely  to  accept  the  performance  to  which  the 
other  party  is  obligated.  He  too  "  shall  "  do  something;  it  is  his 
duty  to  receive  what  is  owing  to  him.  To  the  obligation  of  the 
obligor,  namely  a  legal  duty  to  perform  (and  to  "  abstain  "),  there 
corresponds  an  obligation  of  the  obligee,  namely  a  legal  duty  to 
accept  performance.  And  therefore  in  the  sources  we  find  the 
obligee  and  obligor  designated  by  exactly  the  same  terms ;  a  fact 
w^hich  cannot  be  disregarded,  else  many  a  statement  of  the  medieval 
legal  sources  will  remain  unintelligible.  In  the  Latin  records  of  the 
folk-laws,  —  for  example  in  the  "Lex  Burgundionum "  (19,  §  10), 
—  in  the  extravagants  of  the  "Lex  Salica",  and  in  documents 
down  into  the  1300  s,  the  word  "  debitor  "  is  used  in  the  sense  of 
"  creditor  "  ;  the  duty  of  the  obligee  to  receive  is  called  his  "  debi- 
tum."  Down  into  the  1500  s  the  German  sources  occasionally  des- 
ignate the  "  Glaubiger"  (obligee)  as  "  Schuldner",  "Schuldiger." 
(3)  The  relation  of  the  obligor's  and  the  obligee's  duties.  —  In  an 
ordinary  obligation  the  legal  duties  of  the  obligor  and  of  the  obligee 
are  united :  an  obligor  is  bound  to  perform  to  his  obligee,  an 
obligee  is  bound  to  receive  from  his  obligor.  It  has  recently, 
however,  been  asserted  that  the  legal  duty  of  the  obligee  is  con- 
ceivable without  a  corresponding  legal  duty  of  an  obligor,  —  in 
other  words,  a  mere  duty  to  accept  something  without  a  correspond- 
ing duty  of  the  obligor  to  render  it ;  that  the  duty  to  receive  is, 
but  the  duty  to  perform  or  pay  is  not,  essential  to  the  concept  of 
an  obligation  ;  that  the  obligation  is  primarily  a  duty  of  the  obligee  ; 
the  obligor  may  be  lacking  (so  von  Amira,  Strohal,  von  Schwerin, 
Puntschart).  It  has  been  supposed  that  this  obligation  without 
an  ol^ligor  could  be  applied  to  explain  institutions  such  as  the 
real-charge  ("  Heallast  ")  and  the  land-debt  ("  Grundschuld  "), 
whose  derivation  from  the  conception  of  a  "  real  obligation  " 
(supra,  pp.  362,  391)  must  (it  is  said)  be  rejected ;  that  there  are 
involved  here  simply  unilateral  obligations  of  an  obligee.  But 
this  theory  of  an  obligee's  legal  duty  without  an  obligor's  legal 
duty,  of  an  obligation  without  an  obligor,  is  in  my  opinion  un- 
sound. Not,  to  be  sure,  because  it  might  "  unduly  shock  the 
nerves  of  a  pedantic  theorist  ",^  but  because  it  breaks  a  logically 
necessary  relation.  As  Gierke  rightly  says,  -  inasmuch  as  all 
legal  relations  are  in  last  analysis  relations  of  power  between  per- 
sons considered  as  subjects  of  will,  no  duty  to  accept  performance 

1  Puntschart' s  words,  Z.  Hand.  R.,  LXXXI  (3d  ser.  XII,  1912),  305. 

2  In  the  "Festschrift  fur  Martitz",  cited  supra,  41. 

467 


§  68]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

can  be  conceived  of  without  a  corresponding  duty  to  perform. 
The  origin  of  this  theory  of  an  '  obhgor-less '  obhgation  may  perhaps 
have  been  an  exaggerated  equahzation  of  the  respective  legal  duties 
of  obligor  and  obligee,  which  itself  may  have  been  derived  from 
the  use  of  the  word  "  Schuld  ",  in  the  older  sources,  for  both  sides 
of  the  obligation.  In  my  opinion,  however,  it  must  not  be  over- 
looked that  the  legal  duty  of  the  obligee,  —  despite  such  identity 
of  expression,  and  despite  also  the  fact  that  it  does  signify  a  legal 
duty,  something  legally  determined,  —  is  of  quite  different  con- 
tent from  the  legal  duty  of  the  obligor,  and  without  this  would  be 
a  concept  without  basis.  True,  the  obligee  "  shall  "  do  something, 
but  this  duty  is  passive ;  not,  like  the  duty  of  the  obligor,  active. 
The  purely  passive  duty  of  the  obligee,  the  duty  to  receive,  cannot 
be  conceived  of  apart  from  the  active  duty  of  the  obligor ;  for  the 
sentence  "the  obligee  shall  receive"  is  logically  r.o  less  imperfect 
than  the  other,  "the  obligor  shall  perform."  In  the  first  we  must 
add,  from  whom ;  in  the  latter,  to  whom.  To  be  sure,  this  does 
not  mean  it  is  impossible  that  it  should  be  temporarily,  or  for  a 
certain  time,  undetermined  who  shall  make  performance  to  the 
obligee ;  nor  is  it  inconsistent  with  the  fact  that  even  most  legal 
systems  treat  as  immaterial  the  question  from  whom  the  obligee 
receives  the  performance  that  is  due  to  him.  But  there  must 
always  be  some  person  who  performs;  for  only  a  person,  not  a 
thing,  can  perform,  and  acceptance  of  performance  without  per- 
formance is  impossible.  This  same  uncertainty  that  prevails  in 
many  cases  with  respect  to  the  identity  of  the  obligor  may  also 
exist  as  respects  the  obligee.  To  whom  performance  shall  be 
made  may  for  the  time  be  uncertain ;  for  example,  who  will  be 
the  last  holder  of  commercial  paper,  to  whom  payment  is  made. 
But  it  coidd  not  be  concluded,  because  of  the  existence  of  such 
possibilities,  that  there  is  here  only  an  obligation  of  a  debtor 
and  no  obligation  of  a  creditor ;  and,  conversely,  there  can  just 
as  little  be  assumed  a  creditor's  obligation  existing  independently, 
without  the  obligation  of  a  debtor.  Performance  by  the  obligor 
and  acceptance  by  the  obligee  depend  mutually  upon  each  other. 
(Ill)  Liability V'Haftung").  — In  the  concept  of  "Schuld" 
there  is  always  involved  a  legal  duty  only  ;  never  a  legal  "  must." 
If  the  legal  duty  is  performed,  a  certain  legal  condition  results 
in  accordance  with  the  law  ;  but  nothing  is  involved  in  the  concept 
of  "  Schuld  "  which  of  itself  could  bring  about  such  condition. 
The  concept  of  legal  duty  is  free  from  any  element  of  compulsion. 
The  recognition  of  this  fact  that  the  content  of  the  "  Schuld  "  is 

4C8 


Chap.  IX]  GENERAL   PRINCIPLES  [§  68 

solely  a  "  shall  "  and  not  a  ''  must  ",  was  derived  directly  from 
the  study  of  primitive  legal  systems.  The  necessity  of  a  concept 
complementary  to  that  of  legal  duty  appears  more  plainly  in  them 
than  in  a  mature  legal  system.  This  is  true  of  the  Germanic  and 
the  old  German  law.  Whoever  failed  to  fulfill  his  legal  obligation 
was  guilty  of  a  breach  of  law.  But  whether  or  not  he  would  fulfill 
it  was  a  question  for  himself ;  no  compulsion  to  perform  resulted 
from  the  obligation,  in  itself.  An  obligor  who  acted  contrary  to 
the  law  might  well  be  expelled  from  the  legal  community,  but  he 
could  not  be  forced  to  perform  his  obligation. 

Hence  the  concept  of  liability  {"  Haftung  ")  was  added  to  that 
of  legal  duty.  It  first  afforded  the  legal  compulsion  that  was  indis- 
pensable to  a  secure  and  developed  legal  intercourse.  Through 
it  there  was  first  realized  a  legal  guaranty  for  the  performance  of 
the  legal  duty. 

The  nature  of  "  Haftung  "  is  clearly  reflected  in  the  expressions 
used  for  it  in  Germanic  legal  terminology.  Their  near  kinship  with 
the  corresponding  Roman  terms  justifies  the  conclusion  that  there 
are  here  involved  very  ancient  ideas  of  the  Indo-Germanic  races ; 
but  they  were  current  also  in  the  ancient  Orient.  Just  as  the 
Romans  employed  the  technical  expressions  "  obligare  ",  "  obliga- 
tio  ",  so  in  medieval  Germany  words  such  as  "  Gebundenheit  ", 
."Bindung",  "Verbindlichkeit",  "Verstrickung",  and  "Haftung" 
were  similarly  used,  as  technical  terms  perfectly  understood ;  and 
other  languages,  as  for  example  the  Scandinavian,  employed  a 
terminology  that  exactly  corresponded  to  these.  As  appears  from 
the  language,  the  problem  involved  was  the  creation  of  a  legal 
bond.  An  object  is  "  bound  "  ("  gebunden  "),  "  entangled  " 
C'verstrickt"),  "  liable  "  ("  verhaftet  ") ;  and  this  for  the  purpose 
of  constituting  a  guaranty  for  the  performance  of  an  obligation : 
it  is  to  warrant  ("  Gewahr  ",  "  ware  ",  "  werescap  ")  such  per- 
formance. For  this  reason  a  control  over  the  thing  so  liable  is 
given  to  the  obligee.  If  the  legal  duty  is  not  performed  then  the 
obligee  can  rely  upon  the  object  so  made  liable,  and  from  it  procure 
satisfaction  of  his  claim  and  compensation  for  the  non-performance 
of  the  duty  owing  him.  He  receives  a  power  to  go  against  the 
object  liable  to  him.  The  thing  thus  liable  to  his  attack  is  there- 
fore, by  such  subjection,  constituted  a  security  ("  Unterpfand  ", 
hypothec,  —  Germanic  "  vadi  ",  "  wadium  ",  "  Wette  ",  suproy 
p.  375  ;  corresponding  to  the  Roman  "  vas  ",  "  vadimonium  ") ; 
it  becomes  bound  by  a  legal  duty  ("  verpflichtet  "  "  plegium  ")  to 
answer  for  the  obligation ;  the  pledge  "  stands  for  "  ("  vorstiin  "  ; 

469 


§  68]  THE   LAW   OF   OBLIGATIONS  [Book  III 

cf.  Lat.  "  prae-stare  ")  the  duty.  And  so,  in  an  important  pas- 
sage of  the  Srtchsenspiegel  (III.  5,  §  5),  we  read  :  "  Stirft  aver  en 
perd  oder  ve  binnen  sattunge  ane  jenes  scult,  de  it  under  ime  hevet, 
bewiset  he  dat  unde  darn  he  (getraut  er  sich)  dar  sin  recht 
to  dun,  he  ne  gilt  is  nicht ;  he  hevet  aver  verloren  sin  gelt,  dar 
it  inie  vore  stunt."  ("  But  if  a  horse  or  ox  dies  while  in  pledge 
without  the  fault  of  him  who  has  it  in  possession,  if  he  proves  this 
and  if  he  offers  legally  to  support  his  statement,  then  he  is  not 
liable  for  it.  However,  he  has  lost  his  money  because  that  stood 
in  its  place  ").  Whatever  must  answer  for  the  performance  of  an 
obligation  warrants  ("  biirgt  ")  it ;  the  conception  of  warranty 
("  Biirgschaft  ")  in  the  broader  sense  "  (Old  High  G.  '  borgen', 
'  purigo  ' ;  A.  Saxon  '  borg  ',  Old  Norse  *  borghan  ',  *  borgha  ', 
*  abyrgjask  ',  '  abyrgd ')  originally  coincided,  notionally,  with 
liability  ('  Haftung  ')."  ^  The  property  which  is  "  entangled  "  or 
made  liable  (the  "  pledge  "  in  the  broad  sense)  is  therefore  an 
object  that  serves  to  satisfy  and  compensate  the  obligee  in  case  the 
legal  duty  is  not  performed,  or  not  properly  performed  "  Haf- 
tung "  is  a  ■'  standing  in  place  of  "  something  else ;  to  "  be  liable  " 
is  to  be  substituted  for  the  legal  duty ;  and,  as  already  remarked 
(supra,  p.  375),  this  "  subjection  "  ("  Bindung  ")  continues  so 
long  as  the  legal  duty  exists.  Only  through  the  performance  of  the 
legal  duty  is  the  object  bound  by  the  "  Haftung  ",  as  by  a  fetter, 
freed  ("  losen  ",  cf.  Lat.  "  solvere  "). 

Only  a  human  being  can  owe  a  legal  duty.  "  For  the  duty  to 
perform  (and  to  abstain)  presupposes  the  operation  of  an  ethical 
factor,  which  always  presupposes  a  person."  -  In  the  case  also  of 
a  "real  obligation"  {supra,  p.  391)  the  subject  of  the  legal  duty 
(obligor's  duty)  is  always  a  human  being,  namely  the  owner  of  the 
land  charged.  It  is  equally  true  that  a  legal  duty  in  the  sense  of 
an  obligation  to  receive  can  be  postulated  only  of  a  subject  of 
rights.  Therefore  things  cannot  be  under  obligations  ("  Schul- 
den  ").  But  men  and  things  can  both  be  liable  ("  haften  ") ;  for 
both  can  be  subjected  to  the  power  of  the  obligee,  that  is  can  be 
exposed  to  his  attack.  If  a  human  being  is  made  liable,  then 
according  to  the  terminology  of  the  Germanic  sources  of  the  Mid- 
dle Ages,  unlike  that  of  to-day,  the  obligee  held  a  "  Forderung." 
For  in  the  sense  of  Germanic  law  a  "  Forderung  "  (to-day  =  con- 
tractual claim)  was  "the  exercise  of  power  against  the  person 
who  was  liable",  and  a  "  Forderungsrecht "  was  "a  right  to  exert 

•  PunlHcluni  in  lIo(>/>\s  "  Roalloxikon  ",  I,  356. 
^  Punischarl,  "  S('huldv<>rtrag  ",  107. 

470 


Chap.  IX]  GENERAL   PRINCIPLES  [§  68 

one's  own  power,  under  certain  preconditions,  against  the  person 
liable."  1 

The  choice  of  the  object  Hable,  whether  a  thing  or  a  person, 
depended  upon  the  circumstances  of  the  particular  case.  In  and 
of  itself  the  liability  of  a  thing,  like  that  of  a  person,  offered  quite 
sufficient  guaranty  that  the  obligor  would  perform.  It  was  in 
nowise  necessary  that  the  obligor  should  also  be  personally  liable, 
notwithstanding  that  such  a  conjunction  of  the  liability  of  a  thing 
or  of  a  third  person  with  the  liability  of  the  debtor's  own  person 
was  quite  possible.  Whoever  made  a  thing  or  another  person 
liable  for  his  obligation  ("  verpfiinden  ",  to  pledge  ;  "  vergeiseln  ", 
to  give  hostages ;  "  verbiirgen  ",  to  give  a  person  as  a  pledge)  was, 
indeed,  an  obligor,  but  he  was  not  himself  liable.  On  the  contrary, 
the  pledge,  whether  a  thing  or  a  person,  was  exclusively  liable. 
And  just  as  a  thing  pledged  was  liable  but  not  obligated,  so  the 
person  who  was  made  a  pledge  for  another's  debt  was  not  him- 
self obligated.  The  legal  duty  remained  exclusively  that  of  the 
obligor  who  was  bound  to  perform  that  which  was  the  object  of  the 
duty. 

"  Schuld  "  and  "  Haftung  "  therefore  became  distinct  in  all 
those  cases  where  the  obligor  was  not  himself  made  personally 
liable.  According  to  the  view  of  the  Germanic  law  there  was 
"  alwa^'s  merely  a  personal  union  when  a  person  liable  was  also 
obligated,  or  an  obligor  was  at  the  same  time  liable  (a  pledge)."  ^ 
But  whereas  a  legal  duty  could  exist  —  and  especially  in  early 
times,  as  we  have  seen,  actually  did  frequently  exist — ^ without 
liability,  every  liability  notionally  presupposed  a  "legal  duty" 
in  all  cases.  "  There  [was  and]  is  no  liability  without  a 
*  where-for  ',  which  is  directly  or  indirectly  the  obligation ;  it 
always  exists  with  reference  to  an  obligation."  ^ 

The  early  Germanic  and  old  German  law  show  with  exceeding 
clearness  the  difference  between  legal  duty  and  liability.  They 
open  a  view  into  conditions  when  obligation  was  clearly  distin- 
guished from  liability. 

It  is  true  that  in  the  oldest  recognizable  stage  in  the  de\eIopment 
of  the  Germanic  law  there  existed  a  usual,  even  though  only  an 
outward,  union  of  duty  and  liability.  This  resulted  from  the  fact 
that  every  legal  duty  was  originally  the  consequence  of  a  misdeed 
that  was  subject  to  a  penalty  (supra,  p.  4G0).     If  the  wrongdoer 

1  Puntschart,  op.  cit.,  231. 

"^  V.  Ainlni,  "01)lij>:ati()nenreeht  ",  II,  77-78. 

3  Puntschart  in  Krit.  Vj.  G.  R.  W.,  XLVII  (3d  ser.  XI,  1907),  03  et  seg. 

471 


§  68]  THE    LAW   OF   OBLIGATIONS  [BoOK   III 

did  not  pay  the  penalty  which  he  owed,  —  e.g.  the  bot  imposed 
upon  him  by  a  jiuljjjmoiit,  —  there  was  no  possibihty  under  the 
oldest  criminal  and  procedural  law  of  directly  compelling  him  to 
perform  his  obligation.  If  he  failed  to  do  this,  of  course  he 
violated  the  law ;  but  neither  the  creditor  nor  the  court  had  the 
power  to  comi)cl  him  to  do  his  legal  duty,  and  nothing  else  was 
possible  than  to  expel  from  the  legal  community  the  member  who 
thus  disregarded  the  law ;  in  other  words,  to  declare  him  outside 
the  peace.  Outlawry  was  the  sole  weapon  wherewith  the  oldest 
law  could  both  enforce  atonement  for  misdeeds  and  punish  the 
wrongdoer.  For  outlawry  affected  not  only  the  person  but  also 
the  property  of  the  outlaw.  This  could  be  confiscated  and 
given  as  damages  to  the  injured  person  to  the  amount  of  the  bot 
to  which  he  was  entitled.  The  body,  too,  of  the  outlaw  might  be 
delivered  to  him,  that  he  might  satisfy  his  claim  from  it.  To  this 
extent,  therefore,  one  who  was  guilty  of  a  misdeed  was  "  liable  " 
to  the  injured  person  as  well  with  his  person  as  with  his  property ; 
but  the  material  satisfaction  of  the  injured  party  was  in  such  cases 
only  an  indirect  result  of  the  judicial  outlawry  ("Acht  ")  imposed 
upon  the  debtor,  and  the  confiscation  of  his  property ;  and  it  re- 
sulted only  when  the  debtor  allowed  matters  to  go  to  that  extreme. 
This  liability  of  the  oldest  law  "  within  the  bounds  of  outlawry  "^ 
was  strictly  limited  to  the  criminal  law ;  it  was  the  consequence 
of  a  misdeed  that  was  subject  to  a  money  penalty  or  bot  ("buss- 
fallig  "),  which  misdeed  the  debtor  failed  to  expiate  by  payment  of 
the  penalty  imposed.  It  might  exist  wherever  the  law  imposed 
bots ;  and,  consequently,  even  where  the  non-performance  of  a  legal 
duty  voluntarily  assumed  was  penalized  with  a  bot  (infra,  §  76). 
Here  also  there  was  involved,  from  the  viewpoint  of  the  old  law, 
a  misdeed ;  for  it  invariably  treated  such  non-performance  as  a 
punishable  violation  of  law,  without  regard  to  the  manner  in 
which  the  obligation  was  created. 

This  liability,  which  was  imposed  by  law  as  the  consequence  of 
outlawry,  gave  way  in  the  course  of  the  development  of  the  private 
law  to  liabilities  created  by  contract.  And  it  is  precisely  the 
liability  created  by  contract  and  superimposed  upon  an  existing 
obligation  which  shows  that  no  liability  arose  from  the  legal  duty 
as  such.  Nor  was  this  less  true  when,  —  as  was  certainly  true  at 
an  early  day,  —  the  transaction  creating  the  duty  came  to  be 
ordinarily  united  with  that  which  created  the  liability ;  nor  when, 
as  a  result  of  further  development,  a  liability  was  directly  attached 
*  Brunncr,  "Grundziige"  (.5th  ed.),  214. 
472 


Chap.  IX]  GENERAL   PRINCIPLES  [§  69 

to  the  duty,  as  a  consequence  of  the  contract  by  which  the  latter 
was  created.  This  actual  or  legal  union  of  the  creation  of  legal 
duty  and  the  giving  of  security  became  the  more  necessary  the 
more  the  law  of  obligations  was  developed  ;  for  who  would  content 
himself  with  a  legal  duty  that  was  unguaranteed  ?  For  this  very 
reason  the  notional  distinction  between  duty  and  liability  con- 
tinued to  exist  in  its  old  sharpness.  Henceforth  they  ordinarily 
originated  simultaneously,  in  one  transaction  which  was  equally  a 
transaction  of  "  Schuld  "  and  of  "  Haftung  " ;  but  though  this 
might  make  the  distinction  between  them  more  difficult  it  did  not 
in  the  least  alter  the  concepts  themselves.  Afterward  as  before  it 
remained  possible  that  "  pure  "  obligational-transactions  might 
be  entered  into  that  did  not  create  a  liability ;  and,  conversely, 
that  "  pure  "  liability-transactions  might  occur  that  were  limited 
in  content  to  the  creation  of  a  liability,  and  were  intended  merely 
to  secure  the  performance  of  an  obligation  already  existing.  In 
particular,  the  frequent  occurrence  in  practice  of  such  "  pure  " 
liability-transactions,  —  including  particularly  the  assumption 
of  a  guaranty  ("  Biirgschaft  ")  for  the  obligation  of  another  person, 
—  is  of  the  utmost  importance  for  the  understanding  of  the  concep- 
tional  distinction  between  legal  duty  and  liability.  Von  Amira  is 
therefore  right  in  saying  of  such  instances,  that  their  importance 
cannot  be  over-estimated,  whether  in  the  old  or  in  the  modern  law.^ 
§  G9.  Varieties  of  Liability.  (I)  Real  and  Personal  Liability.  — 
According  to  the  object  which  is  liable,  and  therefore  subject  to 
attack  by  the  creditor,  there  may  be  distinguished  various  kinds  of 
liability.  As  already  remarked  {supra,  p.  471),  persons  as  well  as 
things  may  be  liable;  consequently,  all  relations  of  liability  are 
either  personal  (" Personen- ")  or  real  ("Sachhaftungen").  "Lia- 
bility of  persons  and  liability  of  things  are  the  primary  principles 
that  have  dominated  from  the  beginning  the  entire  law  of  obliga- 
tions." ^  By  means  of  this  twofold  division  it  is  possible  to  clas- 
sif}^  in  a  logically  satisfactory  manner  all  known  forms  of  liability. 
A  divergent  view,  represented  particularly  by  Gierke,  assumes 
on  the  other  hand  a  threefold  classification  of  liabilities.  It 
places  beside  the  liability  of  persons  and  of  things,  as  a  third  inde- 
pendent class,  the  liability  of  property  ("  Vermogenshaftung  "). 
But,  as  will  be  shown  below  under  (III),  "  so-called  '  property  ' 
liability  is  only  one  form  of  personal  liability  ",^  which  was  origi- 

1  In  Z2.  R.  G.,  XXXI  (1910),  497. 

2  V.  Amira  in  ibid.,  494. 

3  Ibid.,  and  also  in  his  "Wadiation  ",  33. 

'  473 


§  69]  THE    LAW    OF    OBLIGATIONS  [BoOK   III 

nail y  always  iinitiHl  with  the  other  form  of  personal  liability,  namely 
corporal  (."  leibliche  ")  liability,  but  which  later  became  inde- 
pendent, and  eventually  completely  displaced  corporal  liability 
m  legal  life.  In  the  case  of  corporal  liability  a  person  is  liable 
with  his  bod}';  in  the  case  of  a  property  liability  he  is  liable  with 
his  property.  In  both  cases  the  person  is  liable ;  only  the  in- 
cidence and  measure  of  the  liability,  in  one  and  the  other  case, 
is  diiVercnt.  Either  the  liability  affects  his  "  personality  "  in  the 
full  extent  of  his  physical  and  legal  existence,  or  it  aft'ects  exclu- 
sively either  his  body  and  physical  powers  of  labor  (corporal 
liability)  or  his  economic  position  as  defined  in  legal  relations 
("  property  "  liability).  But  it  is  quite  different  in  the  case  of 
real-liability.  This  attaches  to  the  things  or  objects  as  such, 
without  regard  to  the  person  who  would  otherwise  be  entitled  to 
dispose  of  them.  In  this  case  the  thing,  strictly,  is  liable,  and 
not  a  person  through  or  with  a  thing.  But  in  the  case  of  "  prop- 
erty liability  ",  the  latter  is  true ;  and  the  creditor  is  accorded  a 
liability  of  the  debtor's  property  through  the  person  of  the  debtor.^ 
Even  Gierke  admits  -  that  "  property  "-liability  is  "  in  essence 
a  liability  under  the  law  of  persons."  He  contrasts  it,  never- 
theless, with  personal  liability  as  an  independent  type  of  lia- 
bility. This  may  be  explained  by  the  fact  that  he  makes  the  concept 
of  personal  liability  coincident  with  that  of  corporal  liability ;  but 
to  do  so  is  neither  acceptable  in  theory  nor  reconcilable  with  the 
historical  development  of  the  Germanic  law  of  liability. 

(II)  Real  Liability.  —  A  thing  is  made  liable  by  giving  it  to  the 
creditor  in  pledge.  Hence  the  development  of  real  liability  coin- 
cides with  the  development  of  the  law  of  pledge ;  a  pledge  right 
is  a  right  to  a  real  liability. 

(1)  Chattel  j)ledges  C' Eahrnispfand  ").3  The  chattel  pledge 
belongs  already  to  the  oldest  law.  The  thing  that  was  made 
liable  passed  into  the  physical  seisin  of  the  pledgee  (possessory 
pledge),  who  thereby  acquired  a  real  right  therein.  This  right, 
however,  amounted  only  to  a  power  to  retain  the  thing  in  his 
custody ;  it  did  not  include  a  power  to  destroy  the  thing,  or  to 
sell  it,  or  take  its  profits.  For  the  debtor  had  the  right  to  release 
the  thing  from  its  "  bondage  "  by  performance  of  the  obligation. 

1  Slrnhnl  (suprn,  p.  409),  36.  ITe  refers  to  §  2092  of  the  Code  Civil 
in  whifli  this  idea  is  expressed  with  especial  elearness.  "Whoever  has 
personally  bound  himself  is  liable  with  all  his  property,  movable  and  im- 
movable, i)resent  and  future,  to  fulfill  his  undertaking." 

2  "Schuld  und  Haftung",  77. 
*  Cf.  pp.  440  li  scq.,  supra. 

474 


Chap.  IX]  GENERAL   PRINCIPLES  [§  69 

If  on  the  other  hand  he  failed  to  perform  his  legal  duty,  then  the 
pledge  right  of  the  pledgee  was  transformed  into  full  ownership, 
—  in  earliest  times  immediately  (forfeiture-pledge),  and  later  as 
a  result  of  a  sale  effected  by  the  creditor  (sale-pledge).  The 
creditor  could  rely  upon  the  thing  so  liable,  only ;  but  upon  this 
under  all  circumstances,  no  matter  in  whose  possession  it  might  be. 
If  it  afforded  him  no,  or  only  an  incomplete,  satisfaction,  or  if  it 
was  destroyed,  he  had  no  further  claims.  For  he  had  been  given 
and  had  accepted  the  pledge,  and  it  exclusively,  as  security.  It 
served  him  as  a  full  guaranty  for  any  damage  he  might  suffer  from 
the  non-performance  of  the  duty.  And  since  the  obligor  originally 
had  only  a  right,  —  but  was  under  no  duty,  —  to  redeem  the  pledge 
by  performance  of  his  obligation,  the  possessory  pledge  constituted 
provisionally  such  counter-performance,  assuring  the  creditor, 
in  case  it  was  not  redeemed,  complete  compensation  for  non- 
performance. 

(2)  Pledge  of  lands}  —  The  pledge  of  lands  was  of  later  origin 
than  the  pledge  of  chattels,  but  in  consequence  of  the  greater 
importance  in  the  Middle  Ages  of  transactions  in  land,  it  was  more 
widely  disseminated  and  more  richly  developed.  Whereas  the 
creditor  originally  received  a  "  qualified  ownership  "  ("  bedingtes 
Eigentum  ",  "  Eigentumspfand  "  =  proprietary  pledge)  in  the 
land  gaged,  and  later  received  a  right  of  pledge  that  was  mani- 
fested in  a  seisin  "  ut  de  vadio  "  and  a  right  of  usufruct  ("  altere 
Satzung",  usufructuary  gage,  —  the  "older"  form  of  gage),  the 
gage  of  lands  without  possession  ("  jiingere  Satzung  ",  execution 
gage,  —  the  "younger"  form  of  gage)  gave  the  creditor  in  case  of 
non-payment  a  right  to  satisfy  himself  from  the  land  by  a  judicial 
execution.  But  in  the  case,  also,  of  the  execution-gage  the 
creditor  received  directly  a  real  right  in  the  land  pledged  ;  and  in 
case  of  a  pledge  land,  such  pledge,  —  which  in  case  of  non-pay- 
ment of  the  debt  likewise  passed  in  full  ownership  to  the  creditor, 
either  by  forfeiture  or  by  sale,  —  was  a  substitute  for  the  defaulted 
payment  to  the  full  amount  of  the  latter.  The  pledge  of  lands,  in 
all  its  forms,  created  a  pure  real-liability.  The  creditor  could  rely 
only  on  the  land  pledged,  but  he  could  enforce  his  "  liability- 
right  "  ("  Haftungsrecht  ")  against  any  third  person  who  acquired 
the  land. 

(Ill)  Personal  Liability.  —  The  development  of  personal  lia- 
bility was  more  complicated  and  is  as  yet  more  obscure  than 
that  of  real  liability.  The  stages  of  its  development  certainly 
1  CJ.  pp.  374  et  seq.,  supra. 

475 


§  00]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

corresponded  to  the  contemporary  development  of  personal 
credit.^ 

(1)  We  are  justified  in  assuming  that  in  the  earliest  period  per- 
sonal liability  signified  a  pawn  ("  Einsatz  ")  of  the  entire  "  per- 
sonality "  ("  Personlichkeit  ")  of  the  person  liable,  which  was 
exposed  in  all  respects  to  the  attack  of  the  creditor.  This  lia- 
bility of  the  person  might,  however,  be  created  in  two  diiferent 
forms,  which  corresponded  to  the  two  forms  occurring  in  real 
liability  :  it  secured  to  the  creditor  either  a  power  in  the  nature  of 
a  possessory  pledge  or  merely  a  hypothecary  right. 

(A)  Liability  in  the  nature  of  a  possessory  pledge  of  the  body 
of  the  debtor  ("Geiselschaft").-  This  was  the  oldest  of  all  modes 
in  which  free  persons  could  be  subjected  to  liability  by  juristic  act. 
"  The  hostage  remained  a  prisoner  of  the  creditor  exactly  as  a 
possessory  pledge  was  held  in  his  possession."  ^  The  giving  of 
hostages  was  the  counterpart  of  the  possessory  pledge  of  things ; 
the  hostage  was  "  a  human  pledge."  '  The  hostage  gave  his  person 
into  the  power  of  the  creditor,  and  this  immediately  ;  so  that  he  was 
thenceforth  "  literally  '  bound  '  or  '  entangled  '  for  the  debt."  '" 
If  the  debt  was  canceled  the  hostage  was  thereby  released  from 
his  liability,  and  again  became  free.  On  the  other  hand,  in  case 
of  a  breach  of  legal  duty  or  delay  in  its  performance  he  was  for- 
feited "  ipso  facto  to  the  creditor,  with  his  person  and  with  all  that 
he  wore,  with  his  freedom  and  with  his  honor ;  but  things  that  he 
had  left  at  home  were  free  from  the  creditor's  attack."  ^  Under 
the  primitive  law  the  creditor  had  the  right  to  kill  him,  or  mutilate 
him,  to  keep  him  as  a  slave,  or  to  sell  him.  Since  the  debtor,  when 
he  gave  himself  as  a  hostage,  could  no  longer  be  active  in  the 
performance  of  this  legal  duty,  because  a  prisoner  of  the  creditor, 

'  This  is  emphasized  by  v.  Amirn,  "Wadiation  ",  42;  the  weighty  sug- 
gestions made  by  him  in  this  work,  42-47,  and  in  the  Z".  R.  G.,  XXXI 
(1910),  490  —  unfortunately  all  too  concise  —  arc  the  !)asis  of  the  treatment 
in  the  text.  See  also,  in  addition  to  the  sections  of  Gierke's  "Schuld  and 
Haftung"  that  are  in  question,  v.  Schwerin's  "  Schuld  und  Haftung  ",  10. 

2  As  Herbert  Meyer  remarks  in  the  "Festschrift  fiir  Gierke  ", 982,  recent 
etymological  interpretations  (Edward  Schrd(I(r,  Much)  connect  the  word 
"Geisel"  (hostage)  with  "Geissel"  (Lombard  "gisil"  =  arrow-shaft, 
Icelandic  "geisl",  old  Norse  "gisli"  =  staff) ;  so  that  it  seems  one  may 
justifiably  interpret  "Geisel"  as  a  staff  or  a  staff-bearer.  This  would 
fit  in  well  with  the  importance  which  the  staff  acquired,  as  will  appear 
below,  in  the  creation  of  liability. 

3  v.  Amira,  "Wadiation  ",  42  el  scq. 

"  The  Sachsensi)i(g(l  (III,  39,  §  2)  says  of  the  debtor  held  for  debt :  "  so 
long  as  he  has  not  paid  him  (the  creditor),  and  is  unable  to  do  this,  he 
remains  himself  his  pledge  for  the  money." 

*  Gierke,  "Schuld  und  Haftung,"  31. 

0  V.  Amira,  "Wadiation",  42  et  seq. 

476 


Chap.  IX]  GENERAL   PRINCIPLES  [§  69 

such  a  form  of  self-hostageship,  although  it  was  possible  and  did 
occur,  must  doubtless  have  been  rarer  than  hostages  for  the  debt 
of  another.  The  sources,  moreover,  assume  the  latter  form  as  the 
normal  case.  "  The  giving  of  hostages  or  a  contract  for  their 
delivery  was  a  transaction  of  pure  liability ;  it  was  the  typical 
form  of  transactions  creating  personal  liability."  ^ 

(B)  A  person  could  make  himself  liable  without  immediately 
making,  himself  the  prisoner  of  the  creditor.  Like  the  thing  in 
the  case  of  an  execution-pledge  his  body  might  at  first  be  free. 
Von  Amira  therefore  speaks  in  this  case  of  "  free  "  personal 
PLEDGES  ("  freie  Biirgschaft  ").  This  pawning  ("  Einsetzung  ") 
of  a  person  for  a  debt  without  a  delivery  of  his  body  to  the  creditor 
first  arose  as  a  "  variation  of  hostageship."  But  how  could  it  be 
possible,  in  this  case,  for  the  creditor  to  secure  himself  by  the  body 
of  the  person  liable,  —  the  pledge  ("  Biirge  "),  —  for  the  non-per- 
formance of  the  latter's  legal  duty  ?  From  the  viewpoint  of  the  old- 
est law  the  creditor  possessed  a  right  to  go  against  the  person  liable 
only  when  the  latter  had  been  deprived  of  the  law's  protection ; 
that  is,  when  he  had  been  declared  outside  the  peace.  If,  there- 
fore, it  happened  that  the  creditor  was  obliged  to  rely  upon  the 
pledge  for  his  security,  —  let  us  suppose  because  another  person, 
the  debtor,  for  whom  such  pledge  had  assumed  liability,  had  not 
performed  his  legal  duty,  —  then,  originally,  an  outlawry  of  the 
person  liable  was  proclaimed  at  the  instance  of  the  creditor.  He 
could  then,  as  a  result  of  the  outlawry,  levy  distress  upon  the 
property  of  the  person  liable ;  that  is,  could  take  pieces  of  his 
property  into  possession  as  "  taken  "  pledges,  which  compensated 
him  for  the  unperformed  obligation.  This  declaring  one  outside 
the  peace  ("  Friedloslegung  "),  this  process  of  judicial  outlawry 
("  Achtverfahren  "),  originally  had  the  effect  of  abandoning  the 
outlaw  to  every  person,  and  this  not  only  with  his  body  and  what- 
ever he  wore  but  with  all  his  belongings,  the  things  over  which  he 
could  dispose.  In  this  case,  therefore,  his  person  as  well  as  his 
property  "  through  his  person  "  were  exposed  to  attack  by  the 
creditor.  But  such  lia})ility  resulted  solely  from  an  outlawry 
actually  declared.  In  time,  an  amelioration  was  introduced  :  the 
prior  process  of  outlawry  ceased  to  be  a  precondition  of  distraint.- 
On  the  contrary  the  law  eventually  gave  the  creditor  the  right  to 
take  his  debtor  as  a  pledge  without  the  latter  having  forfeited  his 
sacred  rights  as  a.  man,  that  is  without  his  having  been  declared 
an  outlaw ;  and  he  might  do  this  either  by  way  of  private  distress, 
1  V.  Amira,  "  Wadiation  ",  43. 
477 


§  69]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

—  either  as  self-help  or  by  judicial  authority,  —  or,  after  the  intro- 
duction of  judicial  execution,  through  official  action.  But  this 
was  allowable,  of  course,  only  when  the  same  })reconditions  were 
satisfied  that  were  required  in  outlawry  as  a  judicial  process; 
there  must  bean  indisiiutablc  legal  duty,  that  is  a  legal  duty  created 
in  observance  of  definite  formalities.  (As  to  this  see  §  71  infra.) 
It  has  already  been  mentioned  (supra,  p.  442)  that  in  the  Salic 
Law  the  introduction  of  official  distress  can  be  traced  back  to 
a  royal  statute  ("  L.  Sal.",  Tit.  50,  3)  interpolated  in  the  text  of 
a  folk-law,  which  accorded  the  creditor,  in  addition  to  the  private 
distress  that  was  alone  customary  theretofore,  "  a  distress  upon 
the  debtor,  subject  to  certain  conditions,  by  the  hand  of  the  royal 
counts."  ^     This  official  distress,  effected  with  definite  formalities, 

—  so-called  "  Strud  "  or  "  Raub  ",  —  has  the  appearance  of  a 
weakened  outlawry  that  is  limited  to  the  debtor's  property.-  It 
secured  to  the  creditor  an  immediate  ownership  in  the  things  taken  ; 
whereas  a  private  distress  originally  created  in  favor  of  the  creditor 
merely  a  pledge  right  in  the  debtor's  things  which  he  distrained. 
Later,  this  became  the  law  in  case  of  official  distress,  also.  In 
this  case,  of  course,  the  debtor's  personal  liability,  which  continued 
so  long  as  the  right  of  distress  was  not  exercised,  was  transformed 
by  the  distress  into  a  real  liability  of  the  object  taken  as  a  pledge. 
It  is  clear  from  this  course  of  development  that  distress,  inasmuch 
as  it  remained  subject  to  the  same  preconditions  as  outlawry,  was 
a  consequence  of  the  personal  liability  of  the  debtor ;  the  only 
difference  being  that  it  no  longer  involved,  like  the  old  and  strict 
process  of  judicial  outlawry,  a  pawning  ("  Einsatz  ")  of  the  entire 
personality,  but  merely  a  liability  of  the  debtor's  property.  The 
creditor  distrained  upon  certain  objects  of  the  debtor's  property 
which  he  thought  might  compensate  him  for  the  defaulted  debt. 
Title  passed  to  him  either  immediately  or  after  a  forfeiture  or  sale. 
Originally,  however,  a  debtor's  assumption  of  liability  in  itself 
created  for  the  creditor  merely  a  right  of  distraint;  and  not,  as 
was  true  in  the  case  of  real  liability,  an  immediate  pledge  right. 
Moreover,  no  definite  thing  was  made  liable  for  the  debt  by  the 
transaction  that  created  a  right  of  distraint ;  the  debtor  made  his 
property  liable  in  the  sense  that  he  gave  the  creditor  a  right  to 
distrain  any  objects  whatever  therein  included,  as  the  creditor 
might  choose.  Hence,  this  subjection  of  the  entire  property  of 
the  debtor  was  known  as  a  "  property  "  liability.  But  one  must 
not  be  misled  by  this  expression  into  regarding  such  a  "  property  '* 

'  Brunncr,  "Geschichte",  II,  454.  *  Ibid. 

478 


Chap.  IX]  GENERAL   PRINCIPLES  [§  69 

liability  as  a  form  of  liability  to  be  classed  with  "real"  obligations. 
The  debtor's  property  was  not  "  liable  "  from  the  viewpoint  of  the 
old  law,  inasmuch  as  a  thing  could  be  made  an  obligor,  according  to 
it,  only  through  a  pledge  right.  But  here  no  more  was  given  than  a 
right  of  distraint.  It  was  therefore  rather  the  person  of  the  debtor 
that  was  liable ;  only  this  liability  was  not,  as  in  the  case  of  the 
old  and  strict  judicial  outlawry,  one  which  attached  to  his  entire 
personality,  nor  was  it  such  a  liability  as  attached,  as  in  the  case  of 
hostages,  to  his  body,  but  on  the  contrary  it  was  enforced  solely 
by  an  attack  upon  his  property.  No  real  right  was  here  given 
to  the  creditor,  such  as  existed  even  in  the  case  of  the  execution- 
gage,  —  which  did  involve  a  "  real  "  liability.  The  right  of  dis- 
traint, moreover,  extended  only  to  the  debtor's  chattels,  which  in- 
cluded for  this  purpose  all  objects  that  were  in  the  debtor's  seisin, 
thus  constituting  an  entity  of  movables.  That  is,  it  extended  to  a 
unitary  mass  of  objects,  the  debtor's  property,,  which  were  affected 
by  the  formal  act  by  which  the  liability  was  created,  but  only  so 
long  as  they  remained  within  the  circle  marked  by  the  seisin  of  the 
debtor.^  All  these  circumstances  make  it  a  reasonable  assumption 
that  what  is  called  "  property  "  liability  "  is  derived  from  personal 
liability  "  ;  that  is,  from  that  liability  which  had  originally  involved 
the  debtor  with  his  body  and  his  goods,  and  which  was  subject  to 
the  precondition  either  of  actual  or  at  least  of  possible  outlawry.^ 
(2)  In  the  second  stage  of  development  of  the  law  of  liability  the 
consciousness  of  this  earlier  precondition  became  completely  lost. 
The  result  was  that  in  all  cases  where  it  was  desired  to  guarantee 
performance  by  an  obligor,  it  became  possible  to  create  a  personal 
liability  by  contract  without  his  becoming  a  hostage  in  the  nature 
of  a  possessory  pledge.  And  since  the  person  who  was  liable 
remained  for  the  time  being  free,  the  result  of  such  a  contract 
was,  —  in  the  sense  of  Amira's  terminology,  —  a  "  free  surety- 
ship," This  contract  may  be  designated  the  contract  of  svretyskip 
in  the  narrow  sense.^  So  long  as  the  right  of  distraint  was  subject 
to  the  precondition  of  an  actual  or  a  possible  judicial  outlawry  the 
debtor  himself  must  ordinarily  have  been  liable,  since  that  pre- 
condition was  satisfied  precisely  in  his  person.  Afterward,  when 
"  free  "  suretyship  could  be  created  in  all  cases  by  contract,  it 
became  the  rule  for  a  third  person  to  assume  suretyship  for  the 

^  Egger,  "Vermoffenshaftune: ".  401. 

2  V.'  Amirn,  in  Z"-.  11.  (I.,  XXXI  (1910),  491.  A  different  derivation  of 
"VermosonsliaftuuK"  is  suggested  by  Herbert  Meyer  in  the  "Festschrift 
fiir  (Tierke,"  978  ct  scq. 

'  V.  Amira,  "Wadiation",  44. 

479 


§  69]  THE    LAW   OF   OBLIGATIONS  [BoOK   III 

debt  of  another,  as  in  hostageship.  Suretyship  in  the  narrow  sense 
was  thus,  at  first,  ordinarily  suretyship  by  a  tliird  person  ("  Fremd- 
biirgschaft  ",  "  outside  "  suretyship).  It  was  a  transaction  of 
**  pure  "  Habihty.  That  is,  its  sole  content  was  the  establishment 
of  a  liability  ("  Haftung  ") ;  it  did  not,  in  itself,  refer  at  all  to  the 
creation  of  a  legal  duty  ("  Schuld  ").  This  contract  of  suretyship, 
as  a  "  pure  "  liability  transaction,  was  adapted  "  to  the  security 
of  any  obligation  ('  Schuld  ')  whatever,  without  regard  to  its 
basis  or  to  its  nature,  and  without  regard  to  the  person  of  the 
debtor."  '  Precisely  for  this  reason  there  was  nothing  to  prevent 
the  debtor  himself  from  undertaking  to  guarantee  his  own  obli- 
gation. The  self-suretyship  that  appeared  among  the  Franks, 
Lombards,  Bavarians,  and  Alamanians,  and  whose  form,  at  least 
among  the  Franks,  appears  as  an  imitation  of  the  form  of  "  out- 
side "  suretyship  {infra,  §  71),  may  possibly  be  best  explained  as  a 
further  development  of  the  latter  form,  which  alone  was  originally 
usual.^  Self-suretyship  played  a  great  role  in  the  older  law ;  natu- 
rally enough,  since  originally  there  did  not  simultaneously  result 
from  the  obligational  contract  ("  Schuklvertrag  "),  as  such,  a 
Hability.  Only  when  this  union  of  legal  duty  and  liability  be- 
came the  rule  was  it  again  possible  to  dispense  with  the  institute 
of  self-suretyship ;  thereafter  the  word  acquired  definitely  the 
meaning  in  which  it  is  current  today,  namely  an  assumption  of 
liability  for  the  obligation  of  another. 

The  contract  of  suretyship  had  as  its  end  the  assumption  of  a 
personal  liability.  The  surety  ("  Biirge  ")  pledged  his  person  for 
the  performance  of  another's  obligation ;  he  subjected  himself  to 
an  attack  by  the  obligee  in  case  of  non-performance  by  the  obligor. 
The  extent  of  this  liability  might  vary.  The  surety  might,  in 
accord  with  the  original  measure  of  personal  liability,  pledge 
("  verstricken  ")  his  entire  personality  without  restriction.  This 
"  se  et  bona  obligare  "  of  the  surety  certainly  offered  to  the  creditor 
the  greatest  security,  but  in  time  it  became  exceptional.  The 
surety  either  pledged  his  body  or  his  property  only ;  the  contract  of 
guaranty  ordinarily  created  either  corporal  or  property  liability 
on  tlie  part  of  the  surety. 

(A)  Corporal  li.\bility  of  the  surety  goes  back  to  the  old  prac- 
tice of  giving  hostages,  save  that,  as  already  mentioned,  it  left  the 
surety  for  the  time  being  free ;  the  creditor  received,  as  a  result  of 
the  contract  of  guaranty,  merely  a  right  to  take  possession  of  the 

'  /'.  Amira,  "  Wadiation  ",  44. 

2  Gierke  is  of  another  opinion,  "  Schuld  und  Uaflung  ",  GO. 

480 


Chap,  IX]  GENERAL  PRINCIPLES  [§  69 

person  of  the  surety,  acting  either  alone  or  through  the  court. 
Whereas  a  judicial  execution  against  the  person  of  the  surety 
originally  effected  a  complete  abandonment  of  the  latter  to  the 
creditor,  it  later  resulted  merely  in  a  "  debtor-bondage  "  ("  Schuld- 
knechtschaft  ")  that  restrained  the  creditor  within  certain  narrow 
limits.  The  surety,  also,  might  obligate  himself  to  place  himself, 
by  way  of  "  self-surrender  ",  at  the  disposition  of  the  creditor  as  a 
debtor-bondsman.  This  always  signified,  in  the  oldest  period,  and 
equally  whether  the  surety  was  reduced  to  debtor-bondage  by  the 
court  or  by  his  own  act,  a  definitive  reduction  to  the  status  of  a 
slave ;  it  was  a  conveyance  in  place  of  payment,  by  means  of 
which  the  creditor  was  finally  and  irrevocably  compensated  for 
non-payment  of  the  debt.  But  already  in  the  Frankish  period  it 
became  possible  to  free  the  debtor-bondsman  from  his  bondage, 
even  after  he  was  in  default,  by  a  subsequent  satisfaction  of  the 
debt ;  so  that,  exactly  as  in  the  case  of  the  oldest  proprietary  pledge, 
the  establishment  of  the  bondage  was  regarded  as  resulting  from  a 
condition  subsequent.  A  further  amelioration  was  quite  commonly 
realized  in  the  Middle  Ages  in  that  the  person  liable,  who  gave 
himself  into  the  creditor's  power,  could  thenceforth  be  required  to 
render  services  as  a  household  follower  ("  Schulddienstbarkeit  ", 
"  Gesindediensten  ")  only.  And,  finally,  the  subjection  {"  Bin- 
dung  ")  of  the  person  liable  was  transformed  into  a  mere  restric- 
tion upon  his  freedom  (private  and  public  imprisonment  for  debt) : 
the  person  liable  could  be  held  a  prisoner  until  the  satisfaction  of 
the  debt,  but  could  not  be  compelled  to  do  any  kind  of  work.  To 
be  sure,  agreements  of  a  harsher  nature  were  not  excluded. 

Wherever  a  contract  of  guaranty  created  a  corporal  liability 
on  the  part  of  the  surety  there  resulted  in  favor  of  the  creditor  a 
right  which,  as  distinguished  from  the  old  institution  of  hostage- 
ship,  was  merely  a  temporary  hypothecary  right  against  the  person 
of  the  surety ;  a  right  which  could  be  enforced  only  when  the  con- 
dition happened  that  made  the  surety  liable.  This  right  of  the 
creditor  to  attack  the  surety's  person  corresponded  to  the  credi- 
tor's right,  already  mentioned  (»upra,  p.  478),  to  distrain  upon  the 
property  of  one  who  was  liable  to  him.  It  made  no  difference 
whether  the  debtor  himself  or  a  third  person  was  the  surety. 
Just  as  the  debtor  paid  with  his  own  person  when  he  made  himself 
liable  with  his  own  body,  so  he  paid,  if  he  offered  another  as  a 
surety,  with  the  person  of  the  latter  ;  the  creditor  must  rely  solely 
upon  the  person  of  tlie  guarantor  in  case  of  non-performance  by  the 
debtor.     The  guarantor  alone  was  exposed  to  attack  by  the  credi- 

481 


§  69 J  THE   LAW   OF  OBLIGATIONS  [BoOK  III 

tor.      If  he  died,  the  right  of  the  creditor  was  ipso  facto  extin- 
guished ;  no  UabiUty  passed  to  the  guarantor's  heirs. 

The  close  historical  connection  between  the  gix'ing  of  hostages 
and  the  corporal  liability  of  the  surety  is  evidenced  by  the  circum- 
stance that  the  typical  form  which  was  created  by  the  Frankish  law 
for  the  enforcement  of  the  surety's  corporal  liability,  and  which 
was  later  long  and  commonly  employed  in  other  legal  systems,  — 
the  so-called  "  Einlager  "  ("  quartering  "),  —  was  derived  directly 
from  hostageship  ;  and  developed  in  a  peculiar  manner  ^  the  hitter's 
external  characteristic,  namely  the  restriction  of  the  right  of  the 
person  pledged  to  move  about.  "  Quartering  ",  —  whose  other 
names  ("  Giselschaft  "  ;  "  obstagium  ",  from  "  obses  "  ;  "  otage  ") 
show  in  their  terminology  the  connection  of  the  two  institutes  in 
legal  history,  —  consisted  in  this,  that  a  person  who  was  liable 
(usually  a  surety,  but  it  might  be  the  debtor  himself  or  the  debtor 
and  a  surety)  was  obligated,  in  case  of  the  debtor's  failure  to  per- 
form and  upon  notice  of  the  creditor,  to  go  to  a  place  agreed  upon, 
and  there  remain  until  payment  of  the  debt.  As  Rintelen  has 
shown,  this  "  quartering  "  of  the  surety  developed  in  some  legal 
systems,  especially  in  the  Netherlands  but  also  in  some  localities 
in  Saxony,  into  a  form  of  corporal  pledge  ("  Biirgschaft  "), 
created  by  law  as  a  statutory  form  of  execution ;  so  that,  there, 
the  creditor  had  the  right  to  demand  of  the  debtor  an  extra-pro- 
cedural "  quartering  ",  although  of  course  usually  only  in  case  of 
claims  particularly  favored.     Ordinarily,  however,  the  duty  to 

'  E.  Friedldnder,  "Das  Einlager,  Ein  Boitrag  zur  deutsehon  Reohts- 
geschichte"  (1868);  Lechyier,  "Das  Obstagium  oder  die  Giselseliaft  nach 
schweizerisehen  Quellen"  (1906);  Rintelen,  "Sohiildliaft  und  Piinlager 
im  Vollstreckiingsverfahren  des  altniederljindisehon  und  siiehsischen 
Reehts"  (1908),  and  cf.  Korsch  in  Krit.  Vj.  G.  R.  W.,  L  (3d  ser.  XIV, 
1912),  128-142  ;  ivisc/i,  "Das  Einlager  im  jiltoston  Sehuldreehte  Mahrens, 
I:  Historiseher  Teil",  in  Zoitschrift  des  deutschen  Vereins  fiir  die  Ge- 
schichte  Mahrens  und  Sehlcsiens,  XXV  (1912),  4  ;  also,  "t)l)er  das  Einlager 
im  iilteren  bolimisehen  Stadtrechte ",  in  "  Mitteilungen  des  Vereins  fiir 
die  Geschichte  der  Deutschen  in  Bohmen",  L  (1912),  2.  —  See  also  Gierke, 
"  Sehuld  und  Haftung  ",  .52  et  seq.,  251  et  seq.  Von  Ajnira,  7?.  R.  G.,  XXXI 
(1910),  498,  contends  that  it  is  impossible  to  connect  the  " Einlager "- 
contract  Avith  hostageship  1)ecause  the  promise  to  give  one's  self  up  as  a 
prisoner  is  not  a  pledge  of  one's  freedom,  any  more  than  a  promise  to  give 
an  ordinary  pledge  is  itself  a  pledge.  But  why  should  it  not  be  possible 
to  regard  the  development  from  hostageship  to  corporal  liability  of  the 
surety  ("  Biirge ",  pledge)  and  to  "Einlager"  as  a  ijhcnomciioti  similar 
to  that  from  the  "older"  (usufructuary)  to  the  "younger"  (excr-ution) 
pledge?  The  contract  of  suretyship  in  the  narrow  sense  certainly  pro- 
duces a  liability  of  the  surety,  because  the  creditor  is  given  immediately 
a  right  to  go  against  the  person  and  property  of  the  surety,  notwithstand- 
ing that  the  enforcement  of  this  right  is  made  dependent  upon  the  hap- 
pening of  the  condition  with  respect  to  which  the  liability  was  created. 
And  it  seems  to  me  that  this  is  similarly  true  in  the  "Einlager-"  contract. 

482 


Chap.  IX]  GENERAL   PRINCIPLES  [§  69 

submit  to  "  quartering  "  in  case  of  demand  must  have  been  assumed 
by  special  contract.  Such  contracts  were  often  made  in  Germany 
from  the  time  of  the  Crusades  onward,  after  the  model  of  those 
in  France.  This  was  most  frequent  among  the  knightage,  but  in 
Switzerland  equally  among  burghers  and  peasants.  The  original 
idea  of  hostageship,  that  the  hostage  must  put  himself  in  the  power 
of  the  creditor,  was  very  considerably  relaxed.  This  appeared 
above  all  in  the  fact  that  the  creditor  frequently  had  the  power  to 
determine  the  place  of  performance ;  although  this  need  no  longer 
necessarily  be  at  his  residence  or  within  a  district  he  controlled, 
his  assent  was  necessary  to  another  place.  Usually  it  was  a 
tavern  or  a  hospitage,  to  which  the  surety  rode,  frequently  with  a 
great  following,  and  where  he  maintained  himself  with  his  servants 
and  horses  until  the  time  for  performance  of  the  obligation  or  the 
expiration  of  a  given  period.  All  this  was  at  the  debtor's  expense, 
and  was  designed  to  exert  pressure  upon  him  for  the  performance  of 
his  obligations.  Wherever  statutory  "  quartering  "  existed  it  was 
customary  to  prescribe  by  a  special  tariff  a  minimum  and  maximum 
expenditure ;  but  in  the  case  of  "  quartering  "  under  contract  no 
statutory  limitation  of  the  quartered  surety's  expenses  was  possible. 
Accordingly,  the  contractual  form,  especially  when  employed  by 
knights  fond  of  good  living,  was  gladly  utilized  as  a  welcome  means 
of  leading  an  exceedingly  prodigal  life,  as  we  are  reminded  by  the 
proverb,  "  Geiselmahl  kostliches  Mahl  "  (a  hostage's  meal  is  a 
delicious  meal).  In  the  1500  s  quartering  was  abolished  by  im- 
perial statutes.  Despite  this,  however,  it  did  not  wholly  disappear. 
In  some  regions  it  has  persisted  down  to  the  present  time,  as  in 
Holstein,  —  where  indeed  it  was  later  expressly  authorized  by  the 
Peace  of  Westphalia  (VII,  §  5)  and  by  the  recess  of  the  imperial 
Diet  of  1654  (§  170),  —  and  in  Switzerland. 

(B)  Property-liability  of  the  surety.  —  With  the  increase  in 
value  of  the  rights  enjoyed  by  individuals  under  the  property  law, 
the  corporal  liability  of  the  surety  became  less  important  and  his 
property  liability  became  the  usual  and  dominant  form  of  surety- 
ship. Here  the  surety  was  not  liable  with  his  body  or  physical 
labor,  but  with  his  property.  He  was  liable  to  the  creditor  in  the 
sense  that  in  case  of  the  non-performance  of  an  obligation,  whether 
that  of  a  third  person  or  of  the  surety  himself,  he  gave  the  creditor 
a  right  to  go  against  his  movable  property.  The  creditor  received, 
therefore,  through  the  contract  of  suretyship,  no  ])ledge  right  in 
objects  already  determined,  but  a  right  of  distraint,  by  the  exercise 
of  which  certain  objects,  when  taken  by  him,  passed  to  him  in 

483 


§  69]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

ownership  or  as  pledges ;  all  of  which  has  already  been  referred 
to  {^'upra,  p.  478)  as  essential  to  so-called  "  pr()j)erty  "  liability,  — 
that  is,  to  the  liability  of  a  person  throngh  his  property.  If  there 
was  involved  a  suretyship  for  the  debt  of  another  person  ("  Fremd- 
biirgschaft  ")  there  resulted  in  the  old  law  of  suretyship,  as  is 
clearly  shown  {infra,  §  71)  by  the  formalism  of  the  contract  of 
guaranty,  a  double  relation  of  liability  :  the  surety  was  liable  with 
his  property  to  the  creditor,  and  the  debtor  was  liable  with  his 
property  to  the  surety ;  a  right  was  given  to  the  creditor  to  dis- 
train upon  the  chattels  of  the  surety,  and  to  the  latter  a  right  was 
given,  in  turn,  in  case  he  was  compelled  to  satisfy  the  creditor 
from  his  own  property,  to  recoup  himself  from  the  debtor's  prop- 
erty. Moreover,  the  creditor  must  rely  exclusively  upo!i  the 
property  of  the  surety,  since  this  alone  had  been  made  liable  to 
him.  The  property  liability  of  the  surety,  consequently,  like  all 
other  forms  of  liability  by  a  surety,  was  according  to  the  Germanic 
law  of  suretyship  a  primary,  and  not  a  secondary  or  accessory, 
liability.  Further,  since  the  surety  alone,  under  the  contract  of 
guaranty,  entered  into  a  relationship  of  liability  to  the  creditor, 
and  since  he  subjected  to  that  liability  only  sucli  property  as  was 
in  his  seisin,  and  which  was  held  together  by  his  seisin  as  an  entity 
{supra,  p.  478),  no  inheritance  of  the  surety's  liability  was  possible. 
A  debtor  might  himself  be  liable  as  his  own  surety,  as  with  his 
body  so  also  with  his  property.  Indeed,  as  already  mentioned, 
it  may  well  be  assumed  that,  even  at  an  early  day,  an  obligational 
contract  ("  Schuldvertrag  ")  ordinarily  came  to  include  a  simul- 
taneous assumption  of  liability  by  the  debtor.  And  when  corporal 
liability  had  become  less  prominent  this  assumption  of  liability 
signified  a  liability  of  the  debtor's  property.  Of  course  this  did 
not  make  it  impossible  for  a  third  person,  in  addition  to  the  debtor, 
to  be  a  surety  through  his  property.  In  such  cases  several 
sureties  might  be  liable  at  the  same  time.  In  such  cases,  also, 
originally,  the  property  of  each  surety  was  directly  and  primarily 
bound  in  case  of  non-performance  of  the  obligation.  True,  the 
surety  was  no  longer  substituted  for  the  debtor,  in  such  cases,  as 
the  sole  person  liable,  but  was  liable  with  the  debtor.  But  here 
also  there  was  no  question  {infra,  §  81)  of  a  preliminary  action 
against  the  debtor,  i.e.,  of  a  "  beneficium  excussionis."  In  the 
course  of  the  IMiddle  Ages,  it  is  true,  many  legal  systems  departed 
still  further  from  the  old  standpoint,  and  introduced,  either  alone 
or  in  connection  with  the  old  form,  a  new  variety  of  warranty 
("  Biirgschaft  ",  guaranty  and  suretyship)  in  which  the  liability  of 

484 


Chap.  IX]  GENERAL  PRINCIPLES  [§  70 

the  guarantor  could  be  enforced  only  secondarily,  after  that  of 
the  debtor.  In  this  case  an  action  against  the  guarantor  was  per- 
mitted only  when  the  debtor  had  been  sued  without  results. 
With  this  change  a  regulation  of  warranty  was  attained  identical 
with  that  of  the  Roman  law ;  and  doubtless  an  acquaintance  with 
the  Roman  system  was  influential  in  this  development.  In  the 
same  way,  the  other  native  principle  of  the  non-heritable  char- 
acter of  warranty  was  abandoned  in  many  legal  systems  under  the 
incipient  influence  of  the  Roman  law ;  the  Schwabenspiegel,  for 
example,  recognized  an  inheritance  by  heirs  of  an  obligation  of 
suretyship.^  ]\Ioreover,  not  least  in  importance  among  the  facts 
to  which  these  transformations  were  due  was  the  fact  that  war- 
ranty by  third-persons  ("  Fremdbiirgschaft  ")  lost  in  many  places 
that  character  of  a  pure  liability  transaction  which  was  originally 
essential  to  it.  The  surety  no  longer  assumed,  by  the  contract  of 
warranty,  a  mere  liability  for  the  debt  of  another,  but  constituted 
himself  at  the  same  time  a  debtor  of  the  person  to  whom  the  se- 
curity was  given.  "  The  idea  was  developed  that  the  surety  is^ 
obligated  ('  schuldig  ')  either  to  perform  the  obligation  that  he  has 
guaranteed  or  to  give  compensation."  ^  This  view  was  especially 
natural  in  cases  where  a  surety  pledged  himself  for  a  personal 
act  that  was  performable  by  another ;  but  it  also  became  estab- 
lished in  the  case  of  money  debts :  the  surety  was  regarded  as 
legally  bound  to  compel  performance  of  his  obligation  by  the 
primary  debtor  or  else  himself  to  perform,  as  a  primary  debtor 
("Selbstschuldner",  "Selbstzahler"),the  obligation  so  guaranteed. 
§  70.  Legal  Duty  and  Liability  in  the  Modern  Law.^  (I)  The 
Conunon  Law  Theory  of  Legal  Duty.  —  Inasmuch  as  the  theoret- 
ical distinction  between  legal  duty  and  liability  is  required,  as 
already  remarked  {.wjira,  p.  4G^),  by  logic,  and  is  therefore  present 
in  every  law  of  obligations,  it  cannot  have  disappeared  in  Germany 
because  of  the  fact  that  the  old  native  rules  and  views  were  every- 
where influenced  and  in  many  points  displaced  by  the  Roman  law 
received  into  Germany.  The  consciousness  and  recognition  of 
the  distinction  merely  became  less  evident,  or  failed  to  develop, 

1  Ssp.  (G.),  9  S,  1. 

2  Gierke,  "Schuld  und  Haftung  ",  105. 

•■'  Of  tlie  literature  cited  under  §  68  supra  see  in  particular  Strohal, 
"Schuldiibernahme"  ;  v.  Srhirerin,  "Schuld  und  Haftung",  and  the  works 
therein  cited,  p.  5,  upon  the  i)resent  law,  to  which  should  be  added  Funt- 
scharVs  essay  in  the  Z.  Hand.  R.,  LXXI  (3d  ser.  XII,  1912),  297-320  and 
Binder,  "Rechtsnorm  und  Rechtspflicht"  (address,  1912),  3-15.  See 
also  Ehrenherg,  "Die  beschriinkte  Haftung  des  Schuldners  nach  See-  und 
Handelsrecht""  (1880). 

485 


§  70]  THE   LAW    OF   OBLIGATIONS  [BoOK   III 

because  the  Romanistic  theory,  in  consequence  of  the  dogmatic 
form  of  the  chissical  Roman  hiw,  overlooked  the  notional  distinc- 
tion between  duty  and  liability.  Roman  law  regarded  every 
**  obligatio  "  as  directly  involving  a  liability,  a  "  must-perform  " 
("  Leistenmiissen  "),  an  action  of  the  debtor  performance  of  which 
could  be  comi)elled  by  judicial  action  and  judgment.  "  Natural  " 
obligations  constituted  a  sole  exception,  little  reconcilable  with  the 
prevailing  theory.  The  distinction,  too,  between  real  liability 
and  personal  liability  was  cither  unknown  to,  or  is  no  longer  dis- 
cernible in,  the  Roman  law  in  its  final  form.  On  the  contrary, 
after  personal  or  real  execution  had  been  had  the  Roman  obligation 
attached  to  the  entire  property  of  the  debtor  without  exception. 
'  Now,  in  the  Germanic  law  also,  from  the  earliest  period,  it  was  an 
ordinary  consequence  of  an  obligational  contract  that  it  involved  a 
liability,  whether  one  created  simultaneously  with  the  legal  duty 
or  one  based  upon  a  distinct  ("  pure  ")  liability-transaction  de- 
signed to  supplement  the  obligation  with  a  warranty.  This  was 
true  except  when  an  independent  obligation  was  created,  without 
any  actual  or  any  possible  liability.  That  legal  duty  and  liability 
were  in  most  cases  united  —  for  an  unguaranteed  debt  can  never 
have  been  common  —  was  therefore  hardly  less  an  actual  fact  in 
the  medieval  law  than  in  the  later  Romanistic  common  law.  It 
was  not  yet  possible,  however,  to  appreciate  the  significance,  for 
an  understanding  of  the  fundamental  concepts  of  the  law  of  obliga- 
tions, of  such  obligations  as  still  continued  to  occur  without  any 
liability,  and  of  the  various  special  forms  of  real  liability.  They 
were  regarded  merely  from  the  standpoint  of  the  common  law  theory 
—  and  consequently  the  latter  attained  an  unlimited  and  unchal- 
lenged supremacy.  Legal  enforceability  was  held  to  be  an  essential 
quality  of  every  obligation ;  "  natural  "  obligations  continued 
to  be  regarded  as  exceptions  to  general  principles,  and  therefore 
only  "  imperfect  "  obligations.  This  view  still  finds  clear  expres- 
sion in  the  definition  of  the  present  Civil  Code :  "  by  virtue  of  an 
obligation  the  obligee  is  entitled  to  demand  performance  by  the 
obligor  "  (§  241). 

Like  the  theoretical  concept  of  obligations,  the  theory  of  surety- 
ship came  to  be  extremely  dependent  upon  the  doctrine  of  the 
alien  law.  Here  again  this  result  was  facilitated  by  the  form 
assumed  by  suretyship  in  the  last  stages  of  the  development  of  the 
medieval  law.  For  as  already  mentioned  (p.  484),  there  was 
realized  even  before  the  Reception  a  transformation  of  the  older 
principles  into  something  similar  to  the  Roman  law;    and  this 

48G 


Chap.  IX]  GENERAL   PRINCIPLES  [§  70 

change  was  carried  much  further  after  the  Reception.  The  lia- 
bihty  of  the  surety  became  quite  generally  a  purely  secondary 
liability  (a  guaranty),  as  in  the  Roman  law:  only  when  demand 
had  been  made  upon  the  debtor, — or  according  to  other  legal 
systems  when  an  action  had  been  brought  against  him,  —  without 
satisfaction,  could  the  creditor  have  recourse  against  the  guarantor, 
to  whom  was  conceded  in  principle  the  "  beneficium  excussionis." 
It  was  only  in  the  commercial  law  that  the  plea  of  an  earlier  action, 
and  therewith  the  purely  secondary  character  of  the  guaranty, 
found  no  recognition.  This  exception  passed  into  the  General 
Commercial  Code  (§  281),  which  provided  that  such  a  plea  should 
be  rejected  "  when  the  debt  results  from  a  commercial  transaction 
on  the  part  of  the  primary  debtor,  or  when  the  contract  of  guaranty 
is  itself  a  commercial  transaction."  The  same  rule  is  recognized 
in  the  present  Commercial  Code  (§§  349,  351) ;  constituting,  there- 
fore, an  exception  to  the  rule  of  suretyship  which  was  formerly 
the  common  law  and  which  is  adopted  in  the  Civil  Code  (§  771). 
Similarly,  the  original  non-heritability  of  suretyship  was  preserved 
in  but  few  legal  systems.  Most  of  them  made  it  heritable,  and 
this  rule  was  adopted  by  the  Civil  Code. 

(II)  Present  Existence  of  the  Distinction  between  Legal  Duty 
and  Liability.  —  Notwithstanding  that  the  modern  law  of  obliga- 
tions has  thus  departed  from  the  old  views  in  many  fundamental 
respects,  and  that  modern  statutes  (all  of  them  drafted  under  the 
influence  of  the  Romanistic  theory  of  the  common  law)  have  never, 
of  course,  employed  in  their  terminology  the  concepts  "  Schuld  " 
and  "  Haftung  "  in  the  sense  given  those  words  in  the  theory  of  the 
Germanist  School,  the  modern  law  exhibits  not  a  few  phenomena 
that  can  be  satisfactorily  explained  only  by  attending  to  the  dis- 
tinction between  them.  We  must  content  ourselves  here  with  a 
brief  reference  to  a  few  of  the  most  important  points  where  the 
concepts  of  duty  and  of  liability  appear  in  the  existing  law  in 
the  sense  first  discovered  in  the  old  Germanic  and  medieval 
German  law. 

The  present  law,  also,  knows  legal  duties  without  liability, 
recognizes  "  pure  "  liability  relations  that  involve  no  legal  duty, 
and  recognizes  various  sorts  of  liability. 

Natural  obligations  find  in  it  a  satisfactory  explanation  as  cases 
of  legal  duties  (legal  duties  in  the  sense  equally  of  a  duty  to  per- 
form or  to  receive)  without  liability ;  especially,  natural  obligations 
arising  from  gaming  or  betting.  They  ought  to  be  performed, but 
no  liability  exists.    Therefore  they  cannot  be  enforced  by  a  legal 

487 


§  70]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

action ;  but,  on  the  other  hand,  when  performed  they  cannot  be 
undone  on  the  ground  that  no  obhgation  existed.  Perhaps  we 
may,  with  Strolial,^  inckide  here  those  cases  where  a  person  makes 
a  loan  to  another  witli  the  statement  that  though  he  will  accept 
repayment  at  an>'  time  he  will  never  demand  it. 

As  regards  liabilities  without  legal  duties,  it  is  true  even  in  the 
present  law  that,  on  principle,  whoever  is  liable  also  owes  a  legal 
duty.  The  suretyship  of  the  present  law  can  therefore  no  longer 
be  conceived  of  as  a  pure  relationship  of  liability.^  At  the  same 
time  examples  can  be  given  to  show  the  possibility  even  to-day  of 
liabilities  existing  independently  of  legal  duties.^  Thus,  for 
example,  a  personal  liability  arises,  without  incurrence  of  a  legal 
duty,  "  when  the  usufructuary  lessee  (*  Piichter  '),  or  other  person 
entitled  to  the  profits  of  a  mercantile  establishment,  assumes  a 
liability  for  business  obligations  of  the  earlier  owner  of  the  business 
by  continuing  the  firm  name." 

Of  the  different  varieties  of  liability,  personal  liability  in  the  sense 
of  corporal  liability  has  disappeared  from  the  present  law  since 
imprisonment  for  debt  ("  Schuldhaft  "),  —  which  was  last  applied 
against  debtors  upon  bills  of  exchange  ("  Wechselhaft  "),  —  was 
abolished  for  all  Germany  by  an  imperial  statute  of  May  24,  1S68 ; 
thus  doing  away  with  every  consequence  of  non-performance  of  an 
obligation  of  private  law  which  affected  the  person  of  the  debtor. 
Although  a  "  personal  "  liability  is  spoken  of  in  the  modern  and 
even  in  the  present  law,  the  expression  signifies  something  different 
than  the  pledging  of  one's  physical  person.  It  means  liability  with 
one's  "  personality  under  the  law  of  property  ",  or  "  property- 
liability  "  in  the  sense  already  several  times  referred  to  (supra,  p. 
478).  This  "personal"  liability  ordinarily  signifies  a  liability 
with  all  one's  property,  as  distinguislicd  from  a  liability  on  one 
hand  with  a  special  estate  ("  Sondervermogen  ")  and  on  the 
other  hand  with  a  particular  thing.  This  last  sort  of  liability,  — 
real  liability,  —  is  still  of  the  utmost  im])ortance  in  the  law. 
Exactly  as  in  the  real  liability  of  the  medieval  law,  only  perfectly 
definite  things  or  objects  are  pledged  for  the  debt,  so  that  its  satis- 
faction is  guaranteed  by  them  exclusively,  and  the  creditor  is  given 
a  right  of  attack  against  them  alone.  "  Pure  "  real  liability  for  real 
obligations  occurs  in  perpetual  land  charges  ("  I^eallasten  "),  and 

•  Op.  cit.,  ()1. 

*  Gierke,  "Schuld  unci  ITaftunp:",  100,  and  the  contrary  view  maintained 
by  fsny  in  Ihcrinq's  .J.  B.,  XLVIII  (2d  ser.  XII,  1904), 'l93  el  seq. 

'  Gierke,  op.  cit.,  cites  the  example  given  in  the  text  and  a  long  list  of 
others. 

488 


Chap.  IX]  GENERAL   PRINCIPLES  [§  70 

in  the  law  of  pledge  in  the  case  of  real  rights  granted  as  security 
("  Grundpfandrecht  ").  The  purest  form  of  the  latter  is  the  non- 
accessory  land  debt  ("  Grundschuld  "),  since  this  is  created 
independently  of  any  legal  connection  with  a  contractual  claim, 
and  even  though  a  personal  obligation  continues  to  exist  or  is 
newly  created  beside  it  such  claim  is  of  no  consequence  under  the 
law  of  things.^  A  counterpart  of  this  in  maritime  law  is  bottomry 
(supra,  p.  453),  which,  along  with  a  purely  real  obligation  that 
creates  merely  a  legal  duty  of  the  debtor  to  pay  ("  Leistensollen  "), 
includes,  as  a  guaranty  of  performance,  a  pledge  of  the  ship  that  is 
enforceable  by  a  real  action.  Here  belong,  also,  the  ship's-debts  and 
lading-debts  of  the  maritime  law  and  law  of  inland  navigation,  in 
which  there  may  be  added  by  contract,  —  along  with  a  pure  real 
liability  (namely,  of  the  ship  and  the  freight),  which  always  exists 
b}'  force  of  statute,  —  a  personal  liability ;  that  is,  a  liability  of 
the  entire  remaining  property  of  the  shipowner  ("  Reeder  ")• 
This  is  analogous  to  the  medieval  covenant  accessory  to  a  pledge 
("  Geloben  zum  Pfande  "  ;  supra,  pp.  444,  450). 

Such  liabilities  restricted  to  particular  things  may  also  have  as 
their  object  a  heritage,  or  the  community  property  of  husband  and 
wife ;  or  may  be  constituted  in  other  ways  by  contract  of  the 
parties. 

In  addition  to  these  there  also  occur  liabilities  that  are  quantita- 
tively limited ;  that  is,  liabilities  that  expose  the  property  of  the 
debtor  to  attack  by  his  creditor  only  to  a  limited  extent,  defined  by 
a  fixed  sum  of  money,  such  e.g.  as  the  liabilities  of  limited  partners, 
of  shareholders,  of  the  members  of  a  partnership  of  fixed  liability, 
and  of  sureties  who  are  liable  only  for  a  maximum  amount. 

The  explanation,  by  reference  to  the  distinction  between  legal 
duty  and  liability,  of  these  and  of  many  other  institutions  of  the 
modern  law  was  first  made  possible  by  the  theory  of  the  Germanist 
School.  Strohal  justly  ascribes  to  this  an  extraordinary  "  crea- 
tive "  value  in  the  theory  of  the  present  law  :  "  it  has  led  us  from 
the  field  of  imagination  to  the  firm  ground  of  historical  evolution, 
from  an  ethereal  ideology  into  the  world  of  actual  phenomena, 
from  abstract  dialectic  to  an  unfettered  observation  and  apprecia- 
tion of  actual  legal  processes."  ^ 

1  Gierke,  "Privatrecht",  II,  910  et  seq. 

2  Strohal,  op.  cit.,  77. 


489 


§71]  THE    LAW   OF   OBLIGATIONS  [BoOK   III 

Topic  2.    The  Historical  Origins  of  Obligations 

§  71.  Obligational  Contracts:  Forms  of  Obligational  and  Liabil- 
ity Transactions  in  the  old  Law.^  (I)  Formalism  of  Transac- 
tions creating  Legal  Duties  and  Liabilities  in  general.  —  Until 
a  recent  day  the  view  prevailed  that  it  was  an  original  prin- 
ciple of  Germanic  law  that  a  contractual  creation  of  obligations 
resulted  from  an  informal  declaration  of  will,  to  which  was 
attributed  a  power  of  creating  legal  and  binding  rights.  This 
assumption  was  definitively  disposed  of  by  the  brilliant  investi- 
gations of  Sohm.  They  showed  that  this  older  theory  of  the 
Germanic  law  of  obligations  involved  an  error  similar  to  that 
in  the  Romanistic  theory  of  the  original  political  organization 
of  the  ancient  Germans,  which  thought  to  find  in  the  primeval 
forests  of  Germany  the  ideal  of  political  freedom.  We  know 
now  that  the  law  of  primitive  peoples  everywhere  is  filled  with 
compulsory  formalism  (fiupra,  pp.  12  et  seq.) ;  that  primitive 
man  can  no  more  conceive  of  a  right  apart  from  forms  than 
of  a  religion  without  a  cult.-  And  so  too  among  the  ancient 
Germans  the  law  of  obligations,  like  all  the  rest  of  the  law,  was 
governed  by  strictly  prescribed  forms.  Sohm  (whose  theory  was 
immediately  accepted)  showed  that  according  to  the  old  law  a 
contract  could  be  concluded  only  as  a  "  real  "  or  as  a  "  formal  " 
contract.  In  the  real  contract  the  binding  force  lay  in  earlier  per- 
formance by  one  of  the  contracting  parties ;  in  the  formal  con- 
tract, in  the  observance  of  some  formality,  whether  the  doing  of 
certain  acts  or  the  speaking  of  certain  words.  At  the  time  of 
Sohm's  investigations  it  was  still  impossible  properly  to  appreciate 
the  distinction  between  legal  duty  and  liability.  It  proved  neces- 
sary to  combine  this  with  his  views.  The  synthesis  was  under- 
taken, particularly,  by  Gierke ;  but  in  the  end  he  foiuid  it  necessary 
to  reject  Sohm's  theory  in  one  important  point.  Adopting  ideas 
which  had  ready  been  expressed  by  Puntschart,''  he  developed  in 
the  broadest  manner,  in  his  work  on  "  Schuld  und  llaftung  ",  the 
view  that  a  distinction  between  these  two  concepts  in  the  law  of 
obligations  must  be  the  basis  and  point  of  departure  of  legal 
theory  even  as  respects  the  formal  aspect  of  juristic  acts;    that 

'  Sohm,  "Das  Recht  der  Ehesohliessunf?"  (1875),  24  cl  sen.,  34  et  seq., 
78  et  seq.;  R.  Loning,  "Dor  Vertrapsbruch  im  doutsclien  Roflit"  (1870); 
Siegel,  "Der  HandschhiK  und  Eid  nel)st  don  vcrwundton  Sichorheiton  fur 
ein  Versprofhon  im  dcutsclion  Kofhtslcbon",  Sitzun^sbcrichte  der  Wiener 
Akademie,  CXXX  (1804).     Also  the  literature  cited  under  §  G8  supra. 

2  Brissaud,  "IManucl",  13.58. 

3  "Schuldvertrag",  404  et  seq. 

490 


Chap.  IX]  GENERAL   PRINCIPLES  [§  71 

the  old  Germanic  and  medieval  German  obligational  ("  Schuld  ") 
contract  was  always  an  informal  one,  and  that  only  transactions 
creating  liability  were  dominated  by  formalism.  This  new  view 
has  found  adherents,  notably  Herbert  ]Meyer,^  but  it  did  not  fail 
also  to  meet  with  opposition,  and  most  especially  that  of  Amira.  - 
This  opposition,  it  seems  to  me,  is  justified.  The  theory  of  Gierke 
and  Puntschart  seems  to  rest  "  upon  an  exaggeration  of  the  differ- 
ence between  legal  duty  and  obligation."  No  proof,  drawn  from 
the  sources,  is  offered  for  the  conclusion  that  no  special  form  was 
necessary  in  the  obligational  contract  of  the  old  German  law. 
According  to  Gierke's  view  every  form  that  occurs  is  due  to  the 
presence  of  a  liability  transaction.  But  in  reasoning  thus  the 
fact  is  forgotten  that  such  an  absolute  separation  of  obligational 
and  liability  transactions  is  impossible.  As  has  already  been 
remarked  (supra,  p.  473),  legal  duty  and  liability  must,  indeed, 
always  be  distinguished  as  regards  their  nature,  but  it  is  not  neces- 
sary to  distinguish  them  as  respects  their  basis.^  The  fact  that  is 
the  basis  of  the  obligation  may  at  the  same  time  include  the  basis  of 
the  liability.  Consequently,  "  pure  "  obligational  contracts  were 
rare  even  in  the  old  German  law.  But  that  they  were  concluded 
informally  where  they  occurred,  and  that  wdiere  contracts  created 
both  a  liability  and  a  legal  duty  their  form  was  associated  with  the 
creation  of  the  liability  only,  and  not  with  the  creation  of  the  duty, 
would  contradict  everything  otherwise  known  of  the  nature  of 
formalism  in  early  law.  Von  Amira  points  convincingly^  to  the 
fact  that  the  "  necessity  of  a  form  exists  not  only  in  transactions 
creating  liability,  in  transactions  of  the  law  of  things  and  of  kin- 
ship, and  in  transactions  under  the  public  law  ",  "  but  also  in  all 
unilateral  offers,  notifications  ('  Ansagen  '),  notices  of  rescission, 
demands,  protestations,  and  all  procedural  acts."  If  no  declara- 
tion could  be  made  between  the  parties  in  judicial  proceedings 
without  the  observance  of  strict  formal  requirements,  this  must 
have  been  all  the  truer  of  transactions  out  of  court  if  it  was  hoped 
to  produce  thereby  any  legal  effects.  In  this  respect  it  could  have 
made  no  difference  whether  such  effects  were  limited  to  the  parties 
themselves  or  affected  third  persons,  - —  whether  they  were  directed 
"  inward  "  or  "  outward  ",  as  the  phrase  goes.  Every  probability 
is  against  the  assumption  "  that  obligational  contracts  alone 
required  no  special  form." 

1  In  the  "Festschrift  fur  Gierke",  974. 

2  Z2.  R.  G.,  XXXI  (1910),  494  et  seq.,  and  "Wadiation",  20  et  seq. 
^  V.  Amira,  "Wadiation",  20. 

*  Z2.  R.  G.,  XXXI  (1910),  495. 

491 


§  71]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

But  because,  as  a  matter  of  fact,  transactions  creating  legal 
duties  and  liabilities  ordinarily  coincided,  the  form  of  the  liability- 
transaction  served  at  the  same  time,  in  normal  cases,  as  the  form 
of  the  obligational  contract ;  in  other  words,  such  form  made  the 
transaction  elective  at  once  as  respects  the  liability  and  the  legal 
duty. 

Disregarding  for  the  moment  real  contracts  (as  to  which  see 
(III)  iiifra)  one  is  justified,  therefore,  in  holding  to  Sohm's  theory 
that  a  contract  directed  solely  to  the  creation  of  performance  of  a 
legal  duty  required,  like  every  other  juristic  act,  a  particular  form, 
and  produced  legal  effects  only  as  a  formal  contract.  The  old  law 
required  for  an  obligational  contract,  exactly  as  for  every  other 
contract,  a  "  visibility  and  notoriety  in  its  creation  " ;  it  "  must 
be  audible  and  visible."  ^  The  requirement  of  audibility  could 
be  satisfied  only  by  the  use  of  particular  words,  often  prescribed 
by  statute.  This  is  the  meaning  of  Lower  Saxon  documents 
when  they  allow  the  making  of  a  simple  obligational  promise 
"  redend "  (orally).^  This  formalism  in  the  content  of  the 
promise,  often  painfully  strict  and  frequently  permanently 
prescribed  in  formulas  and  formularies,  would  have  been  mean- 
ingless if  the  promise  creating  the  duty  had  not,  as  such,  been 
regarded  as  requiring  a  form  quite  aside  from  the  legal  con- 
sequence of  liability.  Especial  importance  was  attributed  to  the 
visibility  of  the  contract ;  for  it  seemed  from  the  sensuous  view- 
point of  the  older  law  far  more  important  to  have  seen  an  act 
than  to  have  heard  certain  words,  as  many  legal  maxims  show, 
—  "  seeing  counts  more  than  hearing  "  ("  sehen  geht  iiber  Horen") 
"  one  trusts  his  eyes  farther  than  his  ears  "  ("  man  glaubt  den 
Augen  weiter  als  den  Ohren  "),  and  the  like.  Visibility  could  be 
secured  directly  in  contracts  under  the  law  of  things  for  the  transfer 
of  possession,  but  it  was  necessary  to  resort  to  symbols  for  this 
purpose  in  the  law  of  obligations.  Particular  gestures  were  re- 
quired, or  in  addition  to  such  the  use  of  certain  instruments  for 
objects.  It  was  an  application  of  the  same  idea  when  the  delivery 
of  a  deed,  which  was  borrowed  from  the  later  Roman  law,  was 
transformed  into  a  formal  act  capable  of  creating  not  only  liability 
but  also  a  bare  legal  duty  (as  to  this  see  details  under  II,  below). 
That  the  transaction  had  not  merely  been  audible  and  visible,  but 
had  actually  been  heard  or  seen,  must  be  proved  by  witnesses.^ 

'  V.  Amira,  "Reeht",  130. 

«  V.  Amira  in  7J.  R.  G.,  XXXI  (1910),  496. 

'  V.  Amira,  "Kecbt",  138. 

492 


Chap.  IX]  GENERAL   PRINCIPLES  [§  71 

(II)  Special  Forms  of  Liability  Transactions.  —  The  purpose 
peculiar  and  essential  to  transactions  creating  liability,  namely 
the  "  binding  "  of  a  thing  or  a  person,  induced  an  exaggerated 
formalism.  Since  the  types  of  real  liability  —  that  is,  the  modes 
of  creating  pledges,  —  have  already  been  discussed  {-nipra,  pp.  374 
et  seq.,  440  et  seq.),  we  have  to  deal  here  merely  with  the  forms  of 
personal  liabilit}',  in  which  a  person  pawned  either  his  entire 
personality,  or  his  body  or  his  property  alone. 

(1)  lie  pledge  of  faith  ("  Treugeliibde  ",  "  fides  facta  ").  The 
pledge  of  faith  of  the  Germanic  law  was  "  the  formal  transaction 
by  which  a  person  subjects  his  person,  in  case  of  non-performance 
of  his  own  or  another's  obligation,  to  attack  by  the  creditor."  ^  It 
may  be  assumed  that  the  pledge  of  faith  "  originated  as  an  ideal 
hostageship,  in  imitation  of  actual  hostageship  ",  a  mere  legal 
restriction  being  substituted  for  physical  restraint ;  although  if 
the  pledge  became  liable  the  creditor  was  given  the  same  rights 
that  he  possessed  from  the  beginning  against  the  hostage.-  Not 
only  may  we  assume  that  the  pledge  of  faith  was  everywhere 
common,  even  in  early  Germanic  times,  as  a  means  of  subjecting  a 
person  to  liability  for  a  legal  duty,  but  the  special  name  for  such  a 
liability-transaction  already  appears  in  Tacitus.  In  the  cele- 
brated passage  of  the  "  Germania  "  concerning  gambling  among 
the  primitive  Germans  (Chap.  24)  it  is  reported  that  they  some- 
times gambled  with  dice  for  stakes  so  high  that  when  everything 
else  was  lost  they  wagered  on  the  last  and  supreme  throw  their 
freedom  and  body ;  and  in  such  a  case  the  one  who  lost 
abandoned  himself  to  voluntary  slavery.  To  the  Roman  writer 
this  extreme  obstinacy  in  an  unworthy  matter  appeared 
astounding ;  they  themselves,  he  adds,  called  this  "  faith " 
("  ipsi  fidem  vocant  ").  The  act  itself,  evidently  correctly 
observed,  becomes  intelligible  only  "  when  we  assume  that 
a  pledge  of  faith  preceded  the  final  cast  of  the  dice."  ^  The 
expression  "  fides  "  was  later  employed  technically  in  the  Latin 
sources  of  the  Frankish  period  ;  they  call  the  transaction  "  fides 
facta."  So  especially  the  "  Lex  Salica ",  whose  50th  Title, 
obscure  and  much  debated,  relates  to  such  "fides  facta."  The 
expression  "  fidem  facere  ",  which  survived  even  in  the  Middle 
Ages  in  various  forms  ("  fidantiam  facere  ",  "  faire  foy  ",  "  donner 
fiance  ",  etc.),  shows  clearly  what  was  here  involved.  The  faith 
is  pawned  or  pledged.     Inasmuch,  however,  as  "  the  moral  worth 

1  Gierke,  "Schuld  und  Haftung",  132. 

2  Ibid.,  141.  3  jiid. 

493 


§  71]  THE   LAW   OF  OBLIGATIONS  [BoOK   III 

of  individuality  is  manifested,  according  to  the  Germanic  view, 
in  one's  faith,  his  whole  })ersonality  is  bound  by  the  pledge  of  his 
faith,  and  Iiis  personal  rights  are  absolutely  forfeited  by  failure 
to  redeem  the  pledge."  '  In  accordance  with  the  original  measure 
of  personal  liability  (supra,  p.  475),  a  pledge  of  faith  originally 
involved  liability  of  the  entire  personality,  without  any  qualifi- 
cation whatever ;  and  therefore  in  primitive  social  conditions 
almost  exclusively  a  surrender  of  the  body,  as  a  pledge  of  body 
and  freedom.  Later,  there  was  also  added  a  pledge  of  the  person 
through  his  pro})erty.  In  the  medieval  sources,  also,  there  was 
still  quite  commonly  understood  by  a  pledge  of  faith  a  corporal 
liability,  notwithstanding  that  such  liability  never  constituted  its 
exclusive  content.  The  pledge  of  one's  personality  was  made 
audible  and  visible  in  the  form  of  the  pledge  of  faith.  The  first 
end  was  secured,  in  this  case  as  in  others,  by  certain  formal  words 
by  which  the  pledge  of  the  faith  ("  Treuverj^flichtung  ")  was 
assumed ;  they  frequently  served  at  the  same  time,  however,  for 
the  creation  of  the  legal  duty.  The  medieval  sources  refer  count- 
less times  to  this  "  geloben  "  (promising)  "  in  "  or  "  with  "  faith 
("  in  ",  "  bei  ",  "  mit  Treue  geloben  ") ;  but  also  frequently  to 
a  mere  "  geloben  "  It  is  doubtful  whether  we  are  to  understand 
by  this  simple  "  Geloben  "  the  technical  pledge  of  faith.  If  this 
question  be  answered  with  Puntschart  in  the  affirmative,  it  would 
also  be  permissible  to  regard  the  simple  "  loven  "  of  the  Sachsen- 
spicgel,  —  which  is  referred  to  in  certain  much  disputed  passages 
of  that  Law  Book,  —  as  the  formal  pledge  of  faith.^  In  addition 
to  the  words  prescribed  there  was  always  essential  to  the  formalism 
of  the  pledge  of  faith  a  certain  ritual  of  gestures  ("  Handritus  ") 
which  very  likely  had  always  consisted  in  the  pledgor's  extending 
his  right  hand  to  the  creditor.  We  may  assume  that  every  surety- 
ship ("  Verbiirgung  ")  in  the  broad  sense,  and  so  every  assumption 
of  personal  liabilities,  was  effected,  even  under  primitive  Germanic 
law,  by  offering  one's  hand.^  The  hand  symbolized  the  pledge  of 
the  person  ;  since  faith  was  pledged  with  the  hand  the  hand  was 
regarded  as  the  pledge.  According  to  primitive  Arian  notions  the 
hand  stood  for  the  person  because  the  poNver  of  the  person  was 

1  Gierke,  "Sehuld  und  Haftung",    132. 

2  ('/.  especially  Ssp.,  I,  7.  Puntscliart's  views  are  attacked  by  von 
Schwcrin  in  7.'^.  R.  (J.,  XXV  (191)4),  '.V2'i  ct  seq.,  and  very  stronfifly  by 
Gierke,  op.  ril.,  107,  20S  el  srq.,  2;i3.  The  latter  sees  in  the  "loven"  of  the 
Sachsenspietjel  nothing  more  than  a  colorless  expression  for  "promise", 
and  in  an  ehilwrate  exposition  interprets  the  statements  of  Eike  in  har- 
mony with  the  theory  of  informal  obligational  contracts. 

'  V.  Amir  a,  "Wadiatiou",  23. 

494 


Chap.  IX]  GENERAL   PRINCIPLES  [§  71 

embodied  in  the  hand  "  as  the  tool  of  tools."  Because  it  was 
given  by  hand-clasp  (in  French  law  "  palmata  ",  "  paumee  ")  the 
corporal  pledge  of  faith  ("  korperliche  Treue  ",  "  foi  de  corps  ") 
was  also  called  simply  hand-pledge  ("hand-faith",  "  Handtreue  "). 
In  addition  to  the  hand-clasp,  in  which  the  promisee  clasped  in 
his  right  hand  the  right  hand  of  the  promisor,  the  illuminations 
of  the  Sachsensipegel  show  us  a  form  of  manual  ritual  in  which  the 
parties  to  the  contract  simply  laid  the  palms  of  their  hands  together, 
holding  them  above  their  heads ;  in  other  words,  the  gesture  con- 
sisted merely  in  touching  and  not  in  clasping  hands.^  It  was  also 
a  Saxon  custom  for  the  promisor  to  raise  above  his  head  the  four 
fingers,  and  later  two  fingers,  of  his  right  hand,  so  that  the  hand 
was  merely  offered  but  not  taken.  But  the  prevalence  of  the  ex- 
pression "  manum  (or  '  fidem  ')  levare  ",  proves  that  such  an 
•elevation  of  the  hand  served  for  the  symbolization  of  the  pledge 
outside  of  Saxony  also,  and  that  in  general  this  raising  of  the  hand, 
and  not  the  special  gesture  with  the  fingers,  was  the  principal  thing 
in  such  a  form  of  pledge.^  Moreover,  the  formalism  of  personal 
pledges  was  not  confined  to  an  offer  of  the  hand.  Among  the 
Franks,  particularly,  it  was  also  customary  to  employ  in  the  trans- 
action a  proffer  of  a  staff ;  to  pledge  one's  faith  by  transfer  of  a 
staff  ("  fidem  facere  per  festucam  ").  This  may  have  been  asso- 
ciated with  the  appearance  of  self-pledge,  which  was  effected  in 
the  form  of  a  wed-giving  {infra,  under  (2)). 

In  all  these  forms,  however,  change  as  they  might  in  different 
times  and  in  the  law  of  different  racial  branches,  the  content  and 
effect  of  the  transaction  remained  the  same.  Even  in  the  medieval 
sources  the  end  sought  was  the  creation  of  a  personal  liability  for  the 
obligation  either  of  one's  self  or  another,  a  pledge  of  faith  that 
involved  the  entire  personality  of  the  pledgor.  Even  in  the  IVIiddle 
Ages  the  pledge  of  faith  might  still  lead  to  a  complete  corporal 
liability,  with  the  consequences  of  debtor-bondage  or  imprison- 
ment for  debt,  and  the  effect  of  a  breach  of  faith  was  that  the  party 
might  be  declared  by  judgment  of  a  court  "  honorless  "  and  "  right- 
less."  Frequently,  the  pledgor  expressly  gave  the  creditor  a  right 
to  take  control  of  his  honor,  so  pledged,  by  means  of  symbolical 
acts,  such  as  by  the  exhibition  of  an  infamous  picture.  "  The 
honor  of  the  debtor  was  forfeited  to  the  creditor  by  his  inability 
to  pay,  and  could  be  publicly  offered  for  sale  and  thrown  away."  ^ 

1  V.  Amira,  "Handgobarden"  (c/.  p.  11,  supra),  239. 

2  Puntschart  in  Inst.  ost.  G.  F.,  XXVIII  (1907),  367. 
'  Heusler,  "Institutioncn",  II,  248. 

495 


§  71]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

"  By  moans  of  the  pledge  of  faith  there  was  doubtless  also  created 
in  the  Middle  Ages  a  liability  through  one's  property.  In  case 
the  obligation  secured  by  the  pledge  was  not  performed,  the  cred- 
itor could  proceed  to  distrain  chattels,  either  by  way  of  self-help 
permitted  for  particular  reason  or  by  resort  to  a  judicial  distraint."  ^ 
In  this  fact  there  appears  in  especially  tangible  form  the  unitary 
character  of  personal  liability,  which  is  merely  realized  in  a  different 
manner  according  as  it  extends  to  the  entire  personality  of  the 
debtor  or  only  to  his  physical  person  or  to  the  property  rights 
included  in  his  legal  personality.  And  it  is  instructive  that  the 
liability  of  a  person  through  his  property  became  in  time  the  pri- 
mary matter,  to  which  recourse  against  the  debtor's  body  was 
subordinated,  being  resorted  to  only  when  attack  upon  the  property 
was  fruitless.  In  this  sense,  however,  "  corporal  liability  appears 
in  the  medieval  German  sources  as  the  normal  accompaniment  of 
property  liability."  ^ 

As  regards  the  relation  between  the  pledge  of  faith  and  obliga- 
tional  contracts,  it  is  agreed  that  the  former  was,  in  and  of  itself, 
a  means  of  guaranteeing  an  obligation,  and  consequently  presup- 
posed an  obligation  which  it  was  intended  to  secure.  This  pur- 
pose was  effected  particularly  well  by  the  promise  to  satisfy  judg- 
ment ("  Urteilserfiillungsgelobnis  "),  in  which  we  have,  possibly, 
the  oldest  way  in  which  a  liability  was  contractually  assumed. 
As  already  stated,  obligation  ("  Schuld  ")  was  in  the  earliest  times 
a  delictual  concept.  It  resulted  directly  from  a  misdeed,  when 
action  was  brought  by  the  injured  person  and  the  defendant  con- 
demned. If  now  the  party  who  lost  in  the  action  took  oath,  in  the 
form  of  a  "  fides  facta  ",  to  fulfill  the  judgment  and  render  to 
the  plaintiff  the  satisfaction  so  awarded,  he  necessarily  added 
to  the  legal  duty,  —  which  was  not  created  by  a  juristic  act 
between  the  parties  but  by  law  ("  gesetzlich  "),  the  liability  that 
was  necessary  to  secure  it  and  necessarj^  for  judicial  execution  ; 
and  this  addition  was  effected  by  contract.  In  the  course  of  the 
law's  further  development  it  also  became  possible  to  create  an 
obligation  voluntarily,  by  wa}"^  of  contract.  And  this  was  the 
point  where,  as  already  remarked  {supra,  pp.  4:7Setseq.),  the  crea- 
tion of  legal  duty  and  of  liability  came  to  be  united,  though  not  at 
all  in  theory  at  least  in  fact,  in  normal  cases.  To  be  sure,  in  the 
case  of  an  obligation  created  by  a  promise  ("  Versprechensschuld  ") 
the  promise  of  performance,  and  not  the  j)ledge  of  faith,  was  the 
basis  of  the  legal  duty.  However,  "  the  obligational  promise 
'  Gierke,  "Schuld  und  Haftung",  202.  « Ibid.,  209. 

496 


Chap.  IX]  GENERAL   PRINCIPLES  [§  71 

might  also  be  embodied  in  the  pledge  of  faith  " ;  ^  not  because  it 
was  free  from  any  requirement  of  form  (Puntschart,  Gierke),  but 
because  it  also  could  be  covered  by  the  form  of  the  pledge  of  faith. 

As  a  formal  act,  the  pledge  of  faith  had  a  certain  similarity  to 
the  stipulation  of  the  classic  Roman  law,  notwithstanding  that  the 
Germanic  law,  unlike  the  Roman,  made  the  promise  of  the  obligor 
the  essential  element  in  the  conclusion  of  the  contract,  and  not 
the  declaration  of  the  obligee's  will,  that  is  the  stipulation.  This 
outward  resemblance,  however,  frequently  led  the  copyists  to 
use  the  Roman  expression  "  stipulatio  "  in  their  documents  and 
formulas,  although  very  often  in  a  wrong  sense.  The  designa- 
tion of  the  transaction  as  "  fidem  facere  "  also  had  its  proto- 
type in  Roman  terminology. 

Already  in  the  Middle  Ages  changes  took  place  in  the  pledge  of 
faith  and  its  formalistic  elements.  The  personal  liability  of  the 
debtor  with  his  entire  property,  and  in  case  of  necessity  with  his 
body,  came  to  be  regarded  as  a  consequence  of  the  legal  duty, 
independently  of  the  pledge  of  faith.  Where  this  happened  the 
pledge  of  faith,  although  it  continued  "  in  most  common  use  ", 
was  transformed  from  a  means  of  creating  liability  into  a  mere 
means  of  increasing  liability ;  and  under  some  circumstances,  in 
consequence  of  the  special  restrictive  agreements  which  it  was 
possible  to  make  use  of,  into  a  means  of  lessening  liability.  For 
the  former  purpose  resort  was  had  especially  to  pledges  of  one's 
honor,  —  particularly  one's  status,  —  by  means  of  special  "  honor- 
clauses."  This  accounts,  in  part,  for  the  fact  that  the  hand-clasp 
had  come  to  represent  merely  an  "  old  traditional  formal  element, 
which  was  no  longer  essential."  ^  On  the  other  hand,  pledge  of 
faith  was  frequently  united  with  or  replaced  by  an  oath.  Indeed, 
this  was  originally  itself  a  formal  pledge  of  faith  that  served  as 
security  for  a  legal  duty  and  was  sanctified  by  religion,  and  which, 
because  of  its  binding  effect  upon  the  conscience  and  its  sanction 
by  the  Church,  was  regarded  as  the  stronger  means  of  creating 
obligations.^  In  place  of  the  oath  there  also  appeared,  later,  a 
declaration  made  before  a  court  or  city  council,  or  in  a  sealed 
instrument,  and  finally  (at  least  in  France)  in  a  notarial  document. 

(2)  The  staf-fnrmula  ("  wadiatio  ").  The  formal  or  wed-con- 
tract  ("  Wettvertrag  ").^  —  The  "  wadiatio  "  was  another  formal 

^  Gierke,  op.  cit.,  206,  referring  to  Puntschart,  "  Schuldvertrag",  290-292, 
etc.  2  jbifi^  257.  3  ihi(i_^  240  et  seq. 

*  As  regards  the  "wadiatio"  the  views  of  t'.  Atriira,  "Stab"  (supra,  p.  11), 
151  et  seq.,  and  "Wadiation",  and  of  Gierke,  "Schiild  und  TTaftung",  259  ct 
seq.,  are  sharply  opposed.     Von  Amira  regards  the  "wadiatio"  as  a  trans- 

497 


§  71]  THE    LAW   OF    OBLIGATIONS  [BoOK   III 

transaction  for  the  creation  of  personal  liability,  and  was  notion- 
all>-  distinguishable  from  the  pledge  of  faith.  In  the  form  in 
which  it  appears  in  the  folk-laws  we  find  it  most  clearly  revealed 
in  the  sources  of  the  Lombard  law.  It  was  applied  in  the  same 
manner  in  the  Prankish  and  Bavarian,  and  also  in  the  Frisian  and 
Anglo-Saxon  and  old  Swedish  law.  The  medieval  law  developed 
from  it  the  so-called  wed-contract.  The  transaction  derived  its 
name  from  its  essential  ceremonial  act  of  delivering  a  staff.  The 
staff  or  rod  was  called  in  the  Lombard  sources  "  wadia  "  ("  gua- 
dia  "),  "  vadimonium  " ;  tlie  transaction  was  designated  as  "  wa- 
diam  dare  ",  "  wadiare  ",  "  wadiatio."  The  word  "  wadia  " 
("  wadiuin  ")  was  the  Latinized  form  of  the  Lombard  "  wadi" 
(Gothic  "  vadi  ",  Old  Norse  "  ved  ",  A.  Saxon  "  wed  ",  Old  High 
G.  "  wetti  "),  and  was  usually  used  as  the  equivalent  of  the  word 
"  vidan  "  =  to  bind  (cf.  supra,  p.  375).^  The  Lombard  "  wadia  " 
was  in  theory  always  a  rod,  exactly  as  was  the  Frankish  "  festuca." 
Now  this  "  wadiatio  "  or  staff-formula,  wherever  it  was  employed 
in  the  Lombard  law,  served  as  the  first  step  in  the  creation  of  a 
suretyship.^  It  was  the  same  in  the  Bavarian  ^  and  old  Franldsh 
laws,  as  well  as  in  other  legal  systems  to  which  the  "  wadiatio  "  was 
known.  This  form  was,  then,  a  transaction  resorted  to  by  a  person 
who  wished  to  give  another  a  surety,  and  thereby'  afford  him 
security  for  the  performance  of  an  obligation.  It  was  a  formal  act 
performed  by  the  pledgor,  not  by  the  surety,  and  was  thus  distin- 
guished from  the  "  fides  facta  ",  which  was  performed  by  the  surety 
in  accepting  the  suretyship.  As  the  Lombard  sources  clearly 
show,  the  "  wadiatio  "  was  effected  by  the  pledgor's,  —  that  is  by 
the  debtor's,  —  handing  to  his  creditor  a  staff'  ("  wadiam  dare  "). 
The  person  given  as  pledge  accepted  the  staff  from  the  creditor,  in 
order  to  give  it  back  to  the  debtor  after  satisfaction  of  his  obliga- 
tion of  suretyship.  The  staff  therefore  passed  from  the  debtor 
(pledgor)  to  the  creditor,  from  the  creditor  to  the  surety,  and 
finally  from  the  surety  back  to  the  debtor.  What  was  the  signifi- 
cance of  this  procedure?  What  legal  conception  underlay  it? 
This  question  can  be  completely  and  satisfactorily  answered  only 
by  Amira's  hypothesis  of  the  messenger-staff  ("  Botschaftsstab"). 

aotion  servinf?  merely  to  create  a  siiretysliip.  TJicrke  sees  in  it  a  generic 
transaction  for  the  creation  of  "property-"  liahilitj'  (in  his  sense),  as 
contrasteri  with  the  pledge  of  faith,  wJiich  creates  a  mere  "corporal" 
liability.     The  text  follows  the  view  of  v.  Amira. 

'  Exceptions  to  this  derivation  are  suggested  by  v.  Amira,  "Stab",  152. 

^"Fklietum  Ratchis",  c.  8  (74G  a.d.).  Cf.  with  this  «;.  Amira,  "Wadi- 
ation",  0. 

'   "  Lex  Baiwariorum  ",  appx.  IV. 

498 


Chap.  IX]  GENERAL   PRIXCIPLES  [§  71 

The  "  wadia  "  which  thus  passed  from  the  debtor  to  the  creditor, 
from  the  creditor  to  the  surety,  and  returned  from  the  surety  to 
the  debtor,  was  a  messenger-staff.  The  debtor  gave  it  to  his 
creditor  in  order,  through  the  creditor,  to  send  him  whose  surety- 
ship he  wished  to  bespeak  a  request  that  he  appear  as  surety. 
It  was,  consequently,  a  commission  that  was  to  be  carried  from  the 
debtor  to  the  surety,  and  which  the  creditor  was  empowered  to 
perform  by  the  staff  he  had  received.  He  fulfilled  his  mandate  by 
delivering  to  the  surety  the  staff,  which  at  the  same  time  evi- 
denced his  power.  "  The  creditor  is  the  debtor's  messenger  to  the 
surety."  ^  In  reality  the  creditor  doubtless  sought  out  the  surety 
only  rarely,  in  order  to  deliver  to  him  the  message  and  perform 
the  mandate ;  in  most  cases,  probably,  the  debtor  brought  with 
him  a  surety  whom  he  knew,  or  caused  him  to  seek  out  the  creditor. 
Legally,  however,  the  surety  might  be  treated  in  all  cases,  including 
those  just  mentioned,  as  one  who  was  acquainted  with  the  mandate 
of  the  debtor  through  the  creditor,  by  delivery  of  the  staff.  If  the 
surety  accepted  the  staff  he  thereby  declared  his  acceptance  of  the 
charge  and  assumption  of  the  suretyship ;  for  which  purpose  the 
Frankish  law,  at  all  events,  required  a  pledge  of  faith  with  hand- 
clasp ("  fidem  facere  ").  The  debtor,  who  was  not  necessarily  pres- 
ent at  this  transaction  between  the  creditor  and  the  surety,  ac- 
quired knowledge  of  the  acceptance  of  the  suretyship  through  the 
delivery  to  him  by  the  surety,  in  his  turn,  of  the  messenger- 
staff ;  so  that  this  thus  completed  its  circle.  If,  as  was  possible, 
the  surety  declined  acceptance  of  the  staff",  then  of  course  he  entered 
into  no  legal  relations  with  the  creditor  and  debtor.  Whether  in 
such  a  case  the  debtor  became  liable  to  the  creditor  as  a  result  of  the 
delivery  of  the  wed,  notwithstanding  that  it  had  not  resulted  in  the 
end  contemplated  (the  creation  of  a  suretyship),  is  a  ciuestion  that 
must  apparently  be  answered,  as  respects  the  oldest  law,  in  the 
negative.  In  such  a  case  he  might,  however,  be  liable  to  the 
creditor  upon  some  other  ground,  though  not  through  the  delivery 
of  the  rod ;  for  example,  because  his  obligational  promise  of 
itself  created  a  liability.  Since,  as  we  have  remarked,  the  surety 
might  refuse  to  accept  the  staff*  and  the  charge,  it  clearly  follows 
that  the  wed-contract,  notwithstanding  that  it  always  contem- 
plated a  suretyship,  need  not  under  all  circumstances  necessarily 
lead  to  such.  The  inexplicable  point,  under  any  other  theory,  is 
the  striking  fact  that  the  surety,  both  in  the  Lombard  and  the 
Prankish  law,  became  liable  to  the  creditor  by  acceptance  of  the 
^  V.  Amira,  "Stab",  154. 
499 


§  71]  THE    LAW   OF   OBLIGATIONS  [BoOK   III 

staff,  whereas  otherwise  a  symbol  of  Hability  was  given  to  the 
creditor  by  liiiii  who  wished  to  bind  himself.  This  makes  it  clear 
that  the  "  wadia  "  can  have  been  no  symbol  of  pledge,  no  simu- 
lated pledge  or  token  of  pledge.  It  was  not  designed  to  symbolize 
the  property  or  the  chattels  of  the  debtor.  And  from  this  it  also 
follows  that  it  is  impossible  to  accept  the  theory  —  unacceptable 
for  other  reasons  {.supra,  p.  495)  —  which  contrasts  the  wed- 
contract,  as  a  transaction  creating  property  liability,  with  the 
pledge  of  faith  as  a  transaction  creating  corporal  liability.  The 
"  wadiatio  "  is  the  transaction  by  which  a  suretyship  is  created 
by  the  delivery  of  a  messenger 's-staff ;  the  j)ledge  of  faith  is  the 
transaction  by  which  suretyship  is  accepted  by  a  proffer  of  the 
hand.  The  "  wadiatio  ",  exactly  as  the  pledge  of  faith,  signified 
personal  liability  generally.  In  what  manner  the  suretyship 
created  by  the  "  wadiatio  "  should  be  realized  and  enforced, 
whether  as  a  pledge  of  the  entire  personality  of  the  surety  or  only 
as  a  limited  pledge  either  of  his  property  or  of  his  body,  was  a 
question  which  had  nothing  to  do  with  the  "wadiatio",  as  such,  in 
its  origin.  Again,  in  the  last  analysis,  it  was  the  debtor's  mandate 
that  secured  to  the  surety,  in  case  he  saved  the  creditor  harmless 
by  performance  of  the  suretyship  he  assumed,  a  right  of  distraint 
against  the  debtor.  This  right  of  indemnity  resulted  directly  from 
the  mandate ;  from  which  it  follows  that  the  mandate  was  one 
of  those  obligational  contracts  which,  even  in  the  theory  of  the  old 
Germanic  law,^  created  simultaneously  a  liability. 

The  strictness  with  which  the  formalism  of  the  "  wadiatio  "  was 
observed  is  shown  in  the  fact  that  although  its  steps  were  adapted 
to  the  participation  of  three  persons  (pledgor  or  debtor,  creditor, 
surety),  they  were  also  required  to  be  observed  when  the  debtor 
wished  to  pledge  himself  to  the  creditor  as  his  own  surety ;  that 
is,  in  so-called  self-suretyship.  In  this  case  the  staff  could  not 
pass  indirectly  to  the  debtor  through  a  third  person,  the  surety, 
but  must  return  to  him  directly  from  the  creditor's  hand.  But,  in 
order  to  preserve  intact  the  idea  of  the  threefold  formality,  the 
debtor  was  nevertheless  bound  to  use  botli  hands  in  a  manner 
prescribed  by  law.  As  the  act  is  described  for  us  in  the  edict  of 
the  Prankish  king  rhil])crich,  he  must  pass  the  staff  to  the  creditor 
with  his  left  hand  and  take  or  receive  it  back  ("  auferre  ")  with  the 
right  hand."  Thus  lie  actually  sent  the  creditor  as  a  messenger  to 
himself,  he  received  and  accepted  witli  the  staff  the  commission 
that  had  proceeded  from  himself,  and,  finally,  he  reported  to  himself 
»  V.  Amira,  "  Wadiation",  24.  «  ..  Ed.  Cliilp.",  6. 

500 


Chap.  IX]  GENERAL   PRINCIPLES  ■  [§  71 

the  result,  "  not  unlike  the  manner  in  which,  in  the  modern  law  of 
bills  of  exchange,  the  drawer  of  a  draft  on  himself  transmits  to 
himself  through  the  payee  his  own  order  to  pay,  and  then  accepts 
it."  ^  The  fact  that  a  self-surety  was  obliged  to  proceed,  under 
the  old  Frankish  law,  with  this  strict  observance  of  form,  because 
it  was  desired  to  preserve  under  all  circumstances  the  ceremonialism 
of  suretyship  by  third  persons,  shows  that  self-suretyship  was  first 
recognized  in  jural  life  merely  as  a  special  case  of  "  dual-"  surety- 
ship and  as  a  substitute  therefor  (cf.  supra,  p.  480).  Later,  self- 
suretyship  was  again  dispensed  with,  because  it  came  to  be  re- 
garded as  an  ordinary  consequence  of  a  contract  that  the  debtor 
should  himself  assume  liability  for  the  performance  he  promised, 
even  though  without  expressly  binding  himself  as  surety ;  but  the 
Lombard  law  still  required  that  the  debtor  should  give  himself  as 
surety  ("  de  guadia  ",  "  quam  dedit  ",  "  mediatorem  ponere  se 
ipsum    ).- 

The  wed-contract  was  in  origin  a  transaction  creating  liability. 
But  it  might  also  serve  as  a  form  of  obligational  contract.  The 
self-suretyship  assumed  through  a  "  wadiatio  "  was  calculated  to 
suggest  such  a  use ;  for  when  it  came  to  be  regarded  as  a  legal 
requisite  that  the  debtor,  in  concluding  an  obligational  contract, 
should  personally  pledge  himself  to  his  creditor  by  delivery  of  a 
wed,  it  was  natural  to  see  in  the  delivery  of  the  wed  the  formal  act 
that  concluded  the  contract.  In  this  manner  there  was  developed 
from  the  "  wadiatio  "  of  the  folk-laws  the  formal  contract  of 
medieval  law  as  we  find  it  in  the  lands  of  many  Germanic  racial 
branches.  So,  for  example,  the  formal  contract  of  the  Frisians 
evidently  included  the  concept  of  an  obligational  promise ;  ^  and 
in  the  Saxon  law  the  "  wadiatio  "  seems  likewise  to  have  been  early 
transformed  into  a  pledge  of  faith,  whereas  "  Wette  "  (wed)  and 
"  wetten  "  (to  give  a  wed)  had  therein  the  meaning  of  "  penalty  " 
and  "  payment  of  a  penalty."  ^  On  the  other  hand,  in  South 
Germany  and  in  Friesland  the  expression  "  wed  "  acquired  for  a 
time  the  general  meaning  of  a  legally  formal  oath  ("  Gelobniss  ")} 
This  terminology,  however,  in  turn  died  out,  and  where  the  mean- 
ing of  a  penalty  did  not  survive,  —  that  is,  in  other  regions  than 
those  of  the  Saxon  law,  —  the  word  "  Wette  "  (wed)  acquired  its 
restricted  meaning  of  the  present  day,  a  bet  or  wager.     The  old, 

1  V.  Amira,  "Wadiation",  29. 

*  Brunner,  "Forschungon",  593. 

»  Gierke,  "Sehuld  und  Haftung",  320. 

*  Ibid.,  322.  5  Ibid.,  326. 

501 


§  71 1  THE    LAW   OF   OBLIGATIONS  [BoOK    III 

strict  formalism  of  the  "  wadiatio  "  was  also  lost  in  the  medieval 
formal  ("  Wctt-",  wed,  or  wager)  contract.  The  first  result 
was  a  certain  confusion,  when  various  other  objects  (ring,  glove, 
sickle,  knife,  kreutzer)  came  to  be  employed  as  symbols  in  addi- 
tion to  the  staff;  but  later  the  giving  and  taking  of  a  symbol  in 
concluding  a  contract  completely  disappeared  from  the  law,  giving 
way  to  such  colorless  practices  as  the  hand-clasp. 

The  "  wadiatio  "  acquired  a  particular  importance  in  the  jural 
life  of  the  early  Middle  Ages  (as  Brunner's  researches  ^  first  showed) 
through  the  fact  that  the  primitive  Germans,  —  first  the  Lom- 
bards, and  then  also  the  Franks,  Bavarians,  and  Alamanians,  — 
borrowed  from  the  late  Roman  law  the  act  of  delivering  a  deed  as 
a  formal  means  for  the  conclusion  of  contracts.  In  that  law  there 
had  appeared,  in  place  of  the  exchange  of  formal  question  and 
answer  essential  to  the  classical  stipulation,  the  delivery  of  a  dis- 
positive document  {infra,  §  88)  embodying  the  desired  juristic 
act ;  the  act  of  tradition  being  treated  as  a  formalistic  act.  Now 
just  as  here  "  the  direct  delivery  of  the  dispositive  document  dis- 
placed the  verbal  stipulation,  so  according  to  Germanic  law  the 
document  was  regarded  as  a  contractual  symbol  that  might  repre- 
sent the  '  wadia  '."  ^  True,  delivery  of  a  document  was  applied 
primarily  in  the  law  of  things,  —  as  "  investitura  per  cartam  ",  — 
for  the  purpose  of  conveying  ownership  in  lands  (,s-uj)ra,  pp.  244 
et  seq.) ;  but  it  was  also  utilized  for  the  conclusion  of  obligational 
contracts.  Like  the  "  wadiatio  ",  the  delivery  of  a  document 
might  signify  merely  the  creation  of  a  liability  in  the  form  of  self- 
suretyship.  This  was  the  case  when  one  who  received  a  money 
loan  delivered  to  his  creditor  a  so-called  "  cautio  ",  in  which  he 
promised  to  pay  the  debt  upon  condition  of  receiving  back  the 
"  cautio."  In  this  case  there  was  superimposed  upon  the  obliga- 
tion that  arose  from  the  delivery  of  the  loan,  —  or  in  other  words 
by  real  contract  —  infra,  under  (III),  — a  liability  created  by  the 
tradition  of  the  document ;  just  as  it  was  common,  in  such  trans- 
actions, to  give  the  creditor  simultaneously  a  pledge,  by  means  of 
the  "cautio."  However,  a  document  might  be  used,  as  well  as  a 
"wadia",  to  create  the  legal  duty  itself ;  either  a  unilateral  obliga- 
tion being  established  by  the  delivery  and  acceptance  of  the  docu- 

'  "Dif  friinkisf'he-romanisf'.heUrkundo  als  W(>rtpapi('r",  in  Z.  TTanrl.  R., 
XXII  (1N77J,  (>4  el  seq.,  'yOFy  et  seq.,  reprinted  in  liis  "F'orschungon"  (1X94), 
524  el  seq.;  "Zur  Rcchlsgosehiehtft  dcr  roniischen  und  g(Tnianischea 
Urkundc"  (Vol.  1,  the  only  one  published,  18S0).  And  today  sec  also 
Gierke,  "Sehuld  und  Ilaftung",  .330  el  seq. 

2  Brunncr,  " Rechtsgeschiehte  der  Urkundo",  G6. 

502 


Chap.  IX]  GENERAL   PRINCIPLES  [§  71 

ment  (for  example,  the  duty  to  pay  liquidated  damages,  —  "Ver- 
tragsstrafe  "),  or  a  transaction  concluded  (for  example  a  contract  of 
sale)  that  bound  both  contracting  parties  to  mutual  performances. 
In  this  case  the  delivery  of  the  document  served,  like  the  delivery  of 
the  "  wadia  ",  as  a  formalistic  mode  of  concluding  the  contract. 
The  document  became,  "  like  the  hand-clasp,  a  substitute  for  the 
'  wadia  '  " ;  "  the  act  of  delivering  the  document  perfected  the 
contract  exacth'  as  did  the  Germanic  act  of  delivering  the  staff."  ^ 
(III)  The  Real  Contract.  ■ —  As  already  mentioned  {supra,  p. 
459) ,  the  oldest  transactions  of  trade  were  non-credit  transactions. 
The  performances  of  the  two  contracting  parties  took  place  act  for 
act.  When  one  party  performed  the  other  was  ipso  facto  obli- 
gated to  follow  with  a  counter  performance,  and  this  immediately. 
From  the  precedent  performance  there  arose  the  legal  duty  ("  Ver- 
pflichtung ",  "  Schuld  ")  of  immediate  counter  performance. 
That  is,  the  transaction  was  a  real  contract,  provided  there  be 
understood  by  this  term,  which  is  derived  from  the  Roman  law, 
every  contract  in  which  the  giving  of  a  thing  ("  res  ")  creates  the 
legal  duty  of  counter  performance.  Now  in  spot  transactions  the 
duty  of  immediate  counter  performance  was  essential :  after  the 
goods  were  delivered  or  the  price  was  paid  there  immediately 
followed  the  delivery  of  the  object  that  was  to  be  bartered  or 
purchased.  A  duty  of  immediate  counter  performance,  however, 
must  have  conflicted  intolerably  with  the  necessities  of  trade. 
In  many  cases  an  immediate  counter  performance  was  impossible ; 
still  oftener  it  was  not  at  all  desirable.  The  need  of  credit  was 
bound  to  result  in  permitting  the  second  party  to  postpone  counter 
performance ;  was  bound  to  make  possible  a  contract  under 
which  the  party  to  whom  performance  was  first  made  was  not 
himself  required  immediately  to  perform.  The  other  party's  prior 
performance  merely  imposed  upon  him  a  legal  duty  to  perform  in 
future,  thereby  making  him  a  debtor  of  the  party  first  performing. 
Thus  the  Germanic  law,  also,  developed  a  real  contract  correspond- 
ing to  the  Roman.  In  it,  as  well,  there  arose,  not  exactly  by  mere 
agreement  of  the  parties  but  by  the  precedent  performance  by  one 
party  (the  "res"),  the  legal  duty  of  the  other  to  perform.  It  is 
clear  that  only  those  obligations  could  be  thus  created  in  which 
performances  were  due  from  both  parties.  Here  belonged,  ac- 
cording to  the  theory  of  the  Germanic  law,  —  herein  differing  from 
the  classic,  though  doubtless  agreeing  with  the  older,  Roman 
law,  —  the  contract  of  sale.  Through  the  delivery  to  the  pur- 
^  Brunner,  "Forschungen",  630. 
503 


§  71]  THE  LAW  OF  OBLIGATIONS  [Book  III 

chaser  of  the  object  sold  there  arose  on  the  purchaser's  part  a  legal 
duty  to  pay  the  purchase  price  later,  according  to  the  agreement 
of  the  parties ;  through  a  pro-payment  of  the  purchase  price  to 
the  seller  there  arose  on  the  hitter's  j)art  a  legal  duty  to  deliver 
the  object  sold  later,  according  to  agreement.  In  the  former 
case  the  purchase  price  was  credited  and  the  purchaser  was  a 
debtor;  in  the  latter  the  payment  was  credited  and  the  seller 
was  the  debtor.  It  is  true  that  a  lial)ility  of  the  other  party  did 
not  yet  exist  as  a  result  of  such  precedent  performance ;  as  we 
know,  this  could  be  created  only  by  giving  a  legal  right  of  action, 
either  through  creating  a  real  right  of  pledge  or  through  the  assump- 
tion of  a  personal  liability.  The  acceptance  of  the  precedent 
performance  originally  obligated  the  receiver  merely  to  a  return 
of  the  object  received,  and  to  nothing  more.  "  The  liability  of 
the  receiver  for  the  debt  that  was  promised,  or  in  other  words  the 
claim  of  the  creditor  for  the  performance  of  this  obligation,  is  the 
result,  in  Germanic  as  in  the  Roman  law,  only  of  modern  develop- 
ment." ^  There  may  therefore  have  l)een  associated  with  pre- 
cedent performance  by  the  seller,  in  delivering  the  object  of  sale, 
a  pledge  of  faith  by  the  purchaser  by  which  he  gave  the  seller 
security  for  the  future  payment  of  the  purchase  price ;  and  with 
payment  in  advance  by  the  purchaser  of  the  purchase  price,  a 
pledge  of  faith  on  the  seller's  part  by  which  he  guaranteed  to  the 
purchaser  the  future  delivery  of  the  object  sold.  In  the  Lombard 
law  the  "  wadiatio"  was  required  to  be  performed  as  in  the  institu- 
tion of  self -pledge  {supra,  p.  501).  But  this  signified  here,  exactly  as 
did  a  pledge  of  faith  accompanying  a  real  contract,  merely  the  crea- 
tion of  liability,  not  the  creation  of  legal  duty ;  for  this  already 
existed  as  the  result  of  precedent  performance  (the  "  res  ") ;  the 
"  wadiatio  "  merely  accompanied  the  obligation  (legal  duty).- 

Precedent  performance,  as  a  fact  creating  liability,  may  therefore 
also  be  designated  as  a  "  gift  with  a  charge  "  ("  Gabe  mit  Auflage  "). 
It  was  made,  not  merely  in  order  to  satisfy  the  person  in  whose 
favor  performance  w^as  given,  but  equally  in  order  to  obligate  him 
to  counter  performance.     And  in  the  "wadiatio  ", — that  is,  in 

»  V.  Amira,  in  Z^.  R.  G.,  XXXI  (1910),  490.  In  my  opinion  v.  Amira 
here  raises  conclusive  objections  to  the  concept  of  "Empfangshaftung" 
that  is  suggested  by  (lierke. 

'■^  Frankcn,  "  P"'ranzr)sisf'heB  Pfandrecht",  218.  On  the  contrary  Cirrl-e, 
I'Schuld  und  Haftung",  li'M  ct  seq.,  s(>es  in  the  real  contract,  not  a  fornial- 
istic  transaction  that  creates  an  obligation  but  one  serving  exclusively 
for  the  creation  of  liability,  whereas  he  regards  the  obligational  relation  as 
originating  even  here  in  the  mutual  promises  of  the  parties. 

'  V.  Amira,  "Recht",  135. 

504 


Chap.  IX]  GENERAL   PRINCIPLES  [§  71 

the  delivery  of  a  staff  to  the  party  first  performing,upon  acceptance 
of  such  precedent  performance, — in  so  far  as  it  created  a  Ha- 
bihty  in  the  nature  of  a  self-pledge  for  a  legal  duty  already  exist- 
ing, there  was  involved  at  the  same  time  an  acknowledgment  by 
the  debtor  of  its  receipt. 

In  time  changes  took  place  which  relaxed  the  requirements 
relative  to  precedent  performance.  Although  it  was  originally 
required  that  the  party  so  performing  must  immediately  perfect 
the  full  performance  to  which  he  was  obligated,  in  order  to  create 
an  obligation  on  the  part  of  the  other  party,  it  gradually  came  to 
be  held  sufficient  if  merely  partial  performance  was  made.  In 
particular,  the  immediate  payment  of  the  whole  purchase  price 
by  the  purchaser  was  no  longer  required  ;  a  payment  on  the  price 
was  held  sufficient.  Thus  there  came  into  use  the  "  Arrha  " 
("  Dran-  ",  "  Drauf-  ",  "  Haft-  ",  or  "  Handgeld  "  ;  money  paid 
"  on  "  the  price,  "  liability  "  or  "  hand  "  money),  —  the  earnest ; 
usually  consisting  of  a  small  sum  of  mone}',  a  small  coin.  The 
Germanic  earnest,  as  is  particularly  clearly  described,  for  example, 
in  the  folk-law  of  the  Visigoths,^  obligated  only  the  party  receiving 
it,  who  in  the  great  majority  of  cases  was  the  seller ;  and  not  the 
purchaser  who  paid  it.  By  the  acceptance  of  the  earnest,  —  that 
is,  of  a  merely  symbolical  precedent  performance,  —  the  vendor, 
the  lessor,  and  so  on,  was  obligated  to  perform  in  turn.  The 
earnest,  therefore,  also  had  the  effect  of  a  "renunciatory  penny"; 
the  receiver,  by  his  acceptance,  renounced  his  right  thereafter  to 
dispose  of  the  object  of  the  contract  to  the  prejudice  of  the  credi- 
tor (for  example,  to  alienate  a  thing  to  a  third  party  before  the  end 
of  a  stipulated  period).  If  he  nevertheless  did  this,  he  committed 
an  unlawful  act ;  the  purchaser  could  bring  an  action  in  the  form 
of  a  "  dare  debes  "  for  the  delivery  of  the  thing,  upon  the  basis  of 
the  contract.  On  the  other  hand  it  is  presumable  that  the  receipt 
of  the  earnest  could  not  originally  create  a  liability  on  the  seller's 
part,  because  the  real  contract,  in  itself,  always  created  an  obliga- 
tion only,  and  not  a  liability.  If,  therefore,  a  liability  of  the  seller 
must  be  added  to  his  legal  duty,  it  remained  equally  necessary 
after  full  precedent  performance  had  been  replaced  by  an  earnest 
that  he  should  enter  into  a  liability  transaction,  —  for  example 
a  "  wadiatio  "  in  the  sense  of  a  self-pledge.  However,  just  as  the 
vendor  did  not  become  liable,  by  the  receipt  of  the  earnest,  to 

1  "Cod.  Euriciani",  fr.  297  (M.  G.,  Legura  seetio  I,  torn.  1,  14).  "Lex 
Wisi^othorum",  5.  4,  4.  Cf.  with  this  Zeumer  in  N.  Arch.  Gesel.  ii.  deut. 
G.  K.,  XXIV  (1899),  580  et  seq. 

505 


§71]  THE    LAW    OF   OBLIGATIONS  [BoOK   111 

deliver  the  thing,  so  the  purchaser  was  as  httle  made  hable  by  the 
payment  of  the  earnest,  the  only  result  of  which  was  the  conclu- 
sion of  a  contract  for  a  later  payment  of  the  full  purchase  price. 
A  liability  of  the  purchaser,  moreover,  could  only  be  created  by  a 
special  and  independent  creation  of  liability ;  that  is,  ordinarily, 
by  a  "  wadiatio  "  performed  by  himself.^ 

But  this  distinction  between  the  delivery  of  the  earnest-money 
(which  concluded  the  contract)  and  the  "  wadiatio  "  (which  estab- 
lished the  liability),  though  one  that  accorded  with  the  law's  orig- 
inal view,  was  not  maintained.  On  the  contrary,  here  again  a  con- 
fusion resulted  between  the  transactions  thus  created,  respectively 
obligations  and  liabilities,  and  this  resulted  in  a  simplification  of 
the  law.  But  it  was  not  here,  as  in  the  "  wadiatio  ",  the  "  wadia  " 
that  was  retained  and  created  the  legal  duty,  but  the  earnest- 
money,  which  came  to  perform  the  services  of  the  "  wadia."  In 
this  connection  the  circumstance  was  especially  important  that 
the  contract  of  sale  was  transformed,  through  the  use  of  documents 
as  "  wadia  ",  into  a  formal  contract  (as  above  mentioned,  p.  502), 
so  that  in  its  case  both  the  function  of  creating  the  liability  and 
that  of  creating  the  legal  duty  were  assigned  to  the  transfer  of  the 
"  wadia."  In  time  it  came  to  be  regarded  as  superfluous  "  that 
the  purchaser,  who  already  gave  earnest-money,  should  also  give  a 
wadia."  ^  The  earnest  assumed  the  functions  of  the  "  wadia  ", 
so  that  its  delivery  created  not  only  a  legal  duty  and  a  liability 
on  the  seller's  part,  but  also  a  legal  duty  and  a  liability  on  the 
buyer's  part.  The  Bavarian  folk-law  already  attributed  to  the 
giving  and  taking  of  hand-money  this  effect  of  creating  mutual 
liability  ;  ^  which  fact  can  only  be  explained  by  the  fact  "  that  the 
hand-money  had  absorbed  the  functions  of  the  '  wadia  '."  '  The 
earnest-contract  thus  became  in  fact  a  compound  of  a  real  and 
formal  contract.  In  so  far  as  the  coin  that  was  given  was  regarded 
as  a  "  wadia  ",  it  was  a  formal  contract ;  on  the  other  hand  in  so 

'  Gierke,  "Schuld  und  ITaftun^?",  344,  alleges  against  this  assumption 
that  it  is  devoid  of  any  support  in  the  sources.  Nevertheless  it  seems  to 
me  a  hypothesis  necessary  to  the  explanation  of  the  transformation  of  the 
real  contract,  in  which  one  party  gives  full  precedent  performance,  into 
an  earnest-contract.  If  even  in  the  perfect  real  contract  the  liahility  of 
the  party  receiving  performance  is  efftH-ted  not  by  the  acceptance,  as  such, 
of  such  performance,  —  for  the  contrary  theory  of  (lierke  is  in  my  opinion 
incapable  of  support  (see  p.  .')04,  note  1,  suprn),  —  but  in  the  declarations 
of  the  parties,  the  same  must  necessarily  have  been  true  originally  in  the 
earnest-con  tract. 

2  Heuslcr,  "  Tnstitutionen",  TI,  256. 

'  "Lex  Baiwariorum  ",  XVI,  10.  Cf.  Gierke,  "Schuld  und  Haftung", 
348  el  seq. 

*  Gierke,  op.  oil.,  350. 

50G 


Chap.  IX]  GENERAL   PRINCIPLES  [§  71 

far  as  the  earnest  still  symbolized  a  perfected  precedent  perform- 
ance on  the  part  of  the  purchaser  that  created  an  obligation  on  the 
part  of  the  seller,  it  retained  the  character  of  a  real  contract.  As 
a  special  type  of  contract,  the  earnest  e\^erywhere  came  to  signify 
"  Haft-"  money  that  imposed  a  liability  on  both  parties.  It  was 
employed  throughout  the  Middle  Ages  as  a  payment  binding  the 
vendor  or  lessor  equalh'  with  the  purchaser  or  lessee.  It  preserved 
the  appearaifice  of  a  real  contract.^  The  fact  that  the  earnest  was 
always  merely  a  simulated  ("  Schein-  ")  performance,  explains  the 
widespread  custom  in  the  Middle  Ages  that  the  receiver,  instead 
of  retaining  it,  consumed  it  in  drink  (hence  "  Weinkauf  ",  "  Leit- 
kauf  ",  "  ervekop  ",  "  bodewin  ",  "  mercipotus  " ;  earnest-wine) 
with  the  aid  of  the  purchaser  and  the  witnesses,  —  "winkopes- 
luden  ",  the  "  wine-cup-people  " ;  or  gave  it  to  the  church  or  the 
poor  ("God's-penny",  and  "  Holy  Ghost  penny  ").  By  this  was 
meant  "  that  the  payment  received  was  in  fact  no  performance  as 
regarded  the  party  receiving  it ;  that  it  was  no  satisfaction,  that 
the  transaction  was  merely  a  fictitious  performance  for  the  pur- 
pose of  k  formal  perfection  of  the  juristic  act."  ^  How  deeply 
rooted  the  view  was  that  the  transaction  was  completed  with  the 
delivery  of  the  hand-money,  the  God's-penny,  the  earnest-wine,  is 
clearly  shown,  however,  by  the  use  occasionally  made  of  the 
custom  in  poetry,  in  order  to  express  the  idea  of  the  inevitableness 
of  death. ^ 

(IV)  Even  the  older  German  law  recognized  formal  acts  which, 
though  indeed  they  might  equally  well  be  used  in  the  conclusion 
of  a  contract,  did  not  like  those  above  discussed  (under  (II)) 
constitute  an  essential  requisite  to  the  creation  of  a  relationship  of 
legal  duty  or  of  liability,  but  on  the  other  hand  contributed  to 
the  contract  some  special  effect,  particularly  as  regarded  its  proof. 
Here  belonged,  above  all,  the  conclusion  of  the  contract  in  court 
("  Gerichtlichkeit  "),  the  occurrence  and  prevalence  of  which, 
especially  in  transactions  involving  land,  has  already  been  dis- 
cussed (p.  246).  In  the  Sachsenspiegel's  system  of  proof,  notably, 
such  judicial  conclusion  of  the  contract  in  court  alone  made  it 
provable  in  law ;  and  in  defect  thereof  the  defendant  might,  save 
in  certain  exceptional  cases,  repudiate  his  legal  duty.   In  the  cities 

1  Sohm,  "Eheschliessimg",  30.  2  fbid, 

3  Thus  for  example  we  read  in  Sebastia7i  Brandt's  "  Narrenscliiff "  : 
"Der  winkouff  ist  sedrunken  sfhon 
Wir  mofjen  nit  dom  kouff  ahston. 
Die  erste  stund  die  lost  ouch  bracht." 
Cf.  Siegel,  "Das  Versprechen  als  Verpflichtungsgrund "  (1873),  31. 

507 


§  71]  THE    LAW   OF   OBLIGATIONS  [BoOK   III 

it  later  became  usual  —  as  has  likewise  been  mentioned  (supra, 
pp.  219  et  seq.)  —  to  execute  an  official  document  embodying  the 
obligational  promise,  which  document  was  made  or  acknowledged 
before  the  town  council  or  the  skevins ;  or  else  to  make  an  entry 
in  the  town  register ;  formalities  which  not  only  made  the  trans- 
action incontestable  but  also  made  it  possible  to  take  out  execu- 
tion immediately  upon  default  in  performance. 

Even  where  the  German  law,  to  insure  publicity  in  the  conclu- 
sion of  the  contract,  required  the  presence  of  witnesses,  this  was  a 
formal  requirement  which  (unlike  certain  analogous  institutes  of 
Scandinavian  law)  was  important  solely  in  relation  to  the  con- 
tract's provability,  and  not  essential  to  its  validity. 

§  72.  The  Conclusion  of  a  Contract  in  Modern  Law.^  (I)  The 
Principle  of  Informality  ("  Formfreiheit  ").  —The  Germanic  sys- 
tem of  real  and  formal  contracts  was  more  and  more  broken  down, 
and  finally  wholly  destroyed,  in  the  last  part  of  the  medieval  period  ; 
and  was  replaced,  under  the  decisive  influence  of  the  Roman- 
Canon  law,  by  the  principle  of  informality  of  contract.  To  be 
sure,  the  contractual  system  of  the  classic  Roman  law  was  based 
upon  a  view  fundamentally  related  to  that  of  the  Germanic ;  for 
alongside  real  contracts  ("  mutuum  ",  "depositum  ",  "  commoda- 
tum  ",  "  pignus "),  the  verbal  contract  (stipulation),  and  the 
literal  contract,  only  four  agreements  of  typical  and  exactly  defined 
content  were  recognized  as  pure  consensual  contracts,  —  namely 
sale,  hire,  mandate,  and  partnership.  These  constituted,  as 
such,  an  exception  to  the  principle  that  informal  contracts,  "  nuda 
pacta  ",  were  generally  unenforceable  by  action .  It  was  the  theory 
of  the  medieval  canonists  that  broke  for  the  first  time  with  this 
principle,  which  had  been  still  defended  by  the  Glossators.  Modern 
theory  misconceived  the  formal  contract  that  was  developed  in 
the  later  Roman  law  from  the  stipulation  and  was  concluded  by 
the  delivery  of  a  document  (supra,  p.  502).  It  regarded  the  docu- 
ment as  invariably  mere  evidence,  and  "  in  consequence  of  this 
error  derived  from  actual  legal  practices  the  rule  that  the  contract 
could  be  perfected  by  an  informal  declaration  of  the  parties' 
agreement."  ^  In  time  this  view  attained  complete  supremacy,  in 
Germany  as  in  France,  although  it  might  still  occasionally  happen, 
at  first,  that  the  same  source  which  laid  down  the  principle  "  pacta 
sunt    servanda  "    also    prescribed    the    old    formality.^     Finally, 

'  L.  Seuffert,  "Ziir  Opsohiohto  dor  o])lip:atorischen  Vertriige"  (1881). 

2  Bri/n>i.rr,  "  Rrc htsprsfliifhto  der  Urkunde",  66. 

3  Pollock  and  Maitlatul,  II,  194. 

508 


Chap.  IX]  GENERA.L   PRINCIPLES  [§  72 

when  the  Law  of  Nature  also  took  a  firm  stand  in  favor  of  informal- 
ity, the  common  law  went  so  far  as  to  reject  even  a  theoretical 
requirement  of  form,^  In  fact  informality  was  also  far  better 
adapted  than  the  strict  view  of  the  earlier  law  to  the  greater 
necessities  of  trade  in  modern  times,  notwithstanding  the  danger 
it  undoubtedly  involved  of  an  easier  overreaching  of  one  part}' 
by  the  other.  This  principle  has  also  been  retained  in  the  law  of 
the  present  day.  From  immemorial  times  commerce  among 
merchants  ("  Handelsverkehr  ")  had  been  less  fettered  than  non- 
mercantile  transactions.  This  fact  was  expressly  recognized  in 
many  places  in  modern  legislation.  So,  for  example,  the  Prussian 
"  Allgemeines  Landrecht  "  (I,  5,  §  149)  released  certain  transac- 
tions between  merchants  ("  Kaufhandlungen  ")  from  the  require- 
ment of  a  written  form.  The  General  Commercial  Code,  going 
further  than  this,  gave  to  all  commerce  between  merchants 
("  Handelsverkehr  ")  almost  complete  freedom  from  prescribed 
forms.  The  advanced  position  earlier  attained  by  the  law  mer- 
chant has  been  adopted  by  the  new  Civil  Code  with  respect, 
also,  to  legal  transactions  in  general.  In  accordance  with  the 
principles  of  the  common  law  it  permits  the  creation  of  obligatory 
juristic  acts  (as  does  the  Swiss  Law  of  Obligations  also,  §  11) 
by  a  mere  agreement  of  the  parties.  Even  contracts  "  for 
return  "  ("  auf  Riickgabe  "),^  —  loans,  leases,  bailments,  creation 
of  proprietary  pledges,  —  which  correspond  to  the  real  contracts 
of  the  Roman  law,  no  longer  have  their  formal  legal  basis  in  the 
present  law  in  a  performance  by  the  creditor  (the  giving  of  a 
"  res  ") ;  it  is  merely  the  special  nature  of  the  obligation  assumed 
in  these  contracts  that  involves  the  necessity  of  delivering  a 
thing  in  addition  to  an  agreement  of  the  parties. 

It  is  true  that  the  principle  of  informality  has  nowhere  been 
realized  without  exceptions.  The  regional  legal  systems,  in  par- 
ticular, maintained  the  native  forms  in  the  case  of  particular  obli- 
gational  contracts,  or  introduced  new  formal  requirements  as  a 
counterweight  against  the  modern  principle  that  was  attaining 
supremacy.  The  Prussian  "  Landrecht  "  went  farthest  in  this 
direction.  The  new  Civil  Code,  also,  recognizes  a  series  of  ex- 
ceptions that  "  are  more  numerous  and  practically  more  impor- 
tant tlian  those  recognized  in  the  common  law,  and  also  than 

1  From  his  standpoint  Gierke  regards  the  establishment  of  informality 
in  oblif^ational  eontraets  as  a  triumph  of  what  he  assumes  to  have  been 
an  old  principle  of  Oerman  law  over  the  Roman  principle  of  formality. 
"Schuld  und  ITaftunp",  .384  et  seq. 

^  Crome,  "System",  II,  168. 

509 


§  72]  THE    LAW   OF   OBLIGATIONS  [BoOK   III 

those  of  the  earher  Territorial  systems  witli  the  exception  of  the 
Prussian."  ^  On  the  other  liand  the  commercial  law  has  only  to 
a  slight  extent  broken  the  principle  of  informality  by  exceptions. 

(II)  Exceptions  to  the  Principle  of  Informality.  (1)  JJ'ritten 
form.  —  The  most  important  formality  with  which  the  validity  or 
the  legal  enforceability  of  a  contract  was  formerly  associated,  and  is 
associated  in  certain  cases  in  the  modern  law,  is  writing.  In  the 
second  half  of  the  INIiddle  Ages,  and  in  connection  with  the  renewed 
vitality  of  dispositive  documents  (infra,  §  88),  the  obligational 
effect  which  had  been  associated  in  the  older  law  with  the  delivery 
of  the  document  was  transferred  to  the  perfected  execution  of  the 
instrument  by  subscription ;  altliough  in  certiiin  cases  the  de- 
livery continued  to  retain  its  old  character  as  the  act  by  which  the 
obligation  was  created.  Either  the  nature  of  the  contract  or  the 
value  of  the  object  that  was  its  subject  matter  was  decisive  of  the 
necessity  or  non-necessity  of  a  written  form,  in  one  or  another 
sense.  So,  in  particular,  the  Prussian  "  Landrecht  "  required  a 
written  form  for  all  contracts  the  subject  of  which  had  a  value 
of  fifty  talers  or  more  (I,  5,  §  131).  If  a  contract  for  which  a 
written  form  was  necessary  under  this  rule  was  concluded  orally, 
no  legal  action  could  be  based  upon  it ;  but  of  course  a  party 
who  despite  the  imperfect  form  in  which  the  contract  was  con- 
cluded had  accepted  from  the  other  party  partial  or  complete 
performance,  was  also  bound,  on  his  side,  either  to  perform  or 
to  return  what  he  had  received,  or  to  compensate  the  other  i)arty 
therefor  (I,  5,  §§  155-56).  The  Code  Civil  (§  1341)  required  a 
written  form  for  all  contracts  concerning  things  of  a  value  ex- 
ceeding 150  francs,  but  only  in  so  far  as  such  contracts  could  be 
proved  only  by  document^,  and  not  by  witnesses.  Contracts  that 
were  required  to  be  concluded  in  writing  without  regard  to  the 
value  involved,  included  under  the  Prussian  "  Allgemeines  Land- 
recht "  contracts  aftecting  the  title  to  lands,  or  rights  "  in  alieno 
solo  ",  or  permanent  personal  charges  and  duties,  etc. ;  according 
to  the  Austrian  Code,  promises  of  gifts,  herital  contracts  between 
husband  and  wife,  etc. 

Aside  from  the  written  form  prescribed  by  statute,  this  could 
also  be  required  by  agreement  of  the  parties.  In  this  case  it  was 
ordinarily  presumed  that  the  writing  should  serve  only  as  evidence, 
and  not  to  determine  the  substantive  content  of  the  contract. 

In  the  j)rivate  law  of  the  present  day  a  writing  is  required  in  the 
following  cases : 

>  Cosack,  " Burgorliche.s  Rccht",  I  (3d  cd.),  291. 
510 


Chap.  IX]  '  GENERAL   PRINCIPLES  [§  72 

For  the  validity  of  a  contract  by  which  a  Hfe  annuity  ("  Leib- 
rente  ")  is  promised,  the  promise  must  at  least  be  in  writing 
(§  761) ;  that  is,  in  so  far  as  a  judicial  or  notarial  authentication  is 
not  prescribed.  It  is  equally  necessary  to  the  validity  of  a  dec- 
laration of  a  surety's  promise  (§  766),  of  a  bare  ("  abstrakt  ") 
obligational  promise  (§  780),  and  of  an  acknowledgment  of  an 
existing  obligation  (§  781).  Further,  the  written  form  is  necessary 
in  contracts  for  the  hire  ("  jMiete  ")  or  lease  ("  Pacht  ")  of  land 
that  are  concluded  for  longer  than  one  year  (§§  566,  581,  2).  An 
order  to  pay  or  deliver  ("  Anweisung  ")  is  also  required  to  be  in 
written  form  (§  783) ;  and  of  course  the  same  is  true  of  all  con- 
tracts concerning  rights  embodied  in  commercial  paper,  especially 
in  so-called  "  Skriptur  "-obligations  (infra,  §  88,  —  negotiable 
choses  in  action  protected  by  the  principle  of  "  public  faith  "). 

In  contrast  to  these  requirements  of  the  Civil  Code,  the  Com- 
mercial Code  has  abandoned  the  requisite  of  the  written  form 
as  regards  a  promise  of  suretyship,  a  bare  obligational  prom- 
ise, and  an  acknowledgment  of  existing  obligations,  subject  to 
the  condition  that  such  suretyship  be  a  commercial  transaction 
on  the  part  of  the  surety,  and  that  such  promise  creating  or 
acknowledging  an  existing  obligation  be  such  on  the  part  of  the 
debtor,  and  that  the  surety  of  the  debtor  be  a  regular  ("  VoU-  ") 
merchant  (§§  350-351). 

In  the  present  Swiss  law  a  written  form  is  required,  in  addition 
to  suretyship  (Swiss  Code  of  the  Law  of  Obligations  of  INIarch 
30,  1911,  Art.  493),  for  the  assignment  of  choses  in  action  (§  105), 
for  contracts  of  warranty  in  cattle  sales  (§  198),  for  the  taking  of 
stock  under  leases  (§  276),  for  the  creation  of  life  annuities  (§  517), 
and  for  the  transfer  of  one's  property  in  exchange  for  a  life  annuity 
("  Verpfriindungsvertrag  ",  §  522).  To  these  must  be  added,  of 
course,  the  cases  of  rights  embodied  in  WTitten  instruments. 

(2)  Reduction  to  writing,  in  court  or  before  a  notary.  —  The 
requirement  that  contracts  should  in  many  cases  be  concluded 
before  public  authorities,  which  originally  existed  in  the  older  law 
in  the  interest  of  judicial  proof  {supra,  p.  508),  was  not  only  pre- 
served in  the  regional  legal  systems  but  in  many  cases  was  made 
by  them  an  absolute  formal  requisite.  Thus,  for  example,  from 
the  1500  s  onward  many  state  statutes  required  certain  trans- 
actions to  be  concluded  in  court,  especially  when  between  peasants, 
imposing  upon  the  court  in  this  connection,  in  the  interest  of  the 
persons  concerned,  the  duty  of  making  a  formal  and  substantive 
test  of  the  transaction  in  the  exercise  of  a  sort  of  superior  guardian- 

511 


§  72]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

ship ;  so  that  the  judge's  approval  alone  gave  legal  validity  to  the 
contract.  This  requirement  of  a  "  judicial  "  contract  was  most 
common  in  case  of  transactions  in  lands  (supra,  pp.  221,  247 
et  seq.).  In  other  cases,  also,  the  judicial  form  was  frequently 
required,  but  merely  to  facilitate  proof  of  the  transaction,  or  for 
the  sake  of  other  advantages  which  it  involved.  And  besides  this 
judicial  character  prescribed  by  statute  such  might  be  voluntarily 
agreed  on  by  the  parties.  Where  this  was  required  merely  to 
facilitate  proof  there  was  often  recognized,  in  connection  with  it, 
the  acknowledgment  of  the  document  before  a  notary  and  two 
witnesses ;  and  the  notarial  form  was  eventually  made  equivalent, 
in  most  cases,  to  the  judicial  form. 

The  present  Civil  Code  requires  judicial  or  notarial  authen- 
tication of  a  declaration  promising  a  future  and  gratuitous  act 
of  performance  (§  518) ;  as  well  as  of  a  contract  by  which  a 
person  obligates  himself  to  convey  land  (§  313),  or  alienates,  or 
charges  with  a  right  of  usufruct,  a  part  or  all  of  his  property 
(§  311),  or  by  which  expectant  heirs  regulate  their  statutory  or 
compulsory  shares  of  the  inheritance  (§  312,  2) ;  and  of  contracts 
for  the  purchase  of  an  inheritance  (§  2371).  The  Commercial 
Code  recognizes  no  peculiarities  in  contracts  of  such  character. 
In  addition  to  the  above  there  are  special  formal  requirements  in 
the  law  of  family  and  the  law  of  inheritance.  The  Swiss  Law  of 
Obligations  requires  a  public  authentication  only  for  contracts 
of  sale  whose  subject  is  land ;  for  contracts,  whether  preliminary 
or  final,  that  create  rights  of  purchase  or  repurchase  in  land  (§  216) ; 
and  for  gifts  of  land  or  real  rights,  as  such  (§  243). 

(3)  Confirmation  of  the  contract.  —  Despite  the  disappearance 
of  the  old  formal  contracts  a  few  of  the  forms  that  were  developed 
in  them  were  retained  in  the  modern  law,  although  they  were 
necessarily  completely  altered  in  their  legal  character. 

This  is  particularly  evident  in  the  case  of  earnest-money.^  Like 
the  earnest  of  the  Roman  law,  this  served,  during  the  dominance 
of  the  principle  of  informality  of  contract,  merely  for  the  confirma- 
tion of  a  contract  that  had  already  come  into  existence  by  agree- 
ment of  the  j)arties.  It  was  only  in  the  case  of  contracts  for  the 
hire  of  servants  that  it  preserved  for  a  time  its  old  character ;  and 
even  to-day  such  contracts  can  only  be  concluded,  in  many  sy?^ 
tems  of  State  law,  by  the  delivery  of  a  handsel-dollar,  —  for 
example  under  the  Prussian  Servants'  Code  of  November  8,  1811. 
Already  in  the  Middle  Ages  the  handsel  had  been  transformed,  here 
1  See  Gierke,  "Schuld  uiul  Haftung",  371  cl  seq. 
512 


Chap.  IX]  GENERAL   PRINCIPLES  [§  73 

and  there,  into  smart-money  {"  Wandelpon  ",  "  arrha  poeniten- 
tialis  ")  ;  the  giver  having  the  right  for  a  certain  time,  because  of 
such  payment,  and  the  receiver  upon  repayment  of  twice  the  same, 
to  withdraw  from  the  contract.  In  some  statutes  it  has  retained 
this  character ;  and  in  other  cases  it  is  always  free  to  the  parties 
to  agree  upon  smart-money  in  their  contract.  According  to  the 
Civil  Code,  on  the  other  hand,  earnest-money  ("  Draufgabe  ") 
is  always  mere  corroborative  proof  of  the  contract,  —  in  the  sense 
that  it  is  unequivocal  proof  of  the  fact  of  its  existence ;  it  has  lost 
its  character  as  smart-money  (§§  336-338) ;  which  it  still  retains  in 
the  French  law.  In  the  Swiss  law,  also,  the  earnest  {"  An-  ", 
"  Draufgeld  ")  is  given  only  for  the  purpose  of  creating  the  lia- 
bility, and  not  as  smart-money  (Oblig.  R.,  §  158). 

§  73.  Unilateral  Promises.^  (I)  The  Older  Law.  —  According 
to  the  principles  of  Germanic  law  already  discussed,  the  creation 
of  an  obligation  by  means  of  a  juristic  act  could  only  be  realized 
through  contract;  that  is,  only  by  the  participation  of  both  the 
parties  interested,  —  of  the  one,  in  that  he  performed  in  advance, 
fully  or  symbolically,  the  obligation  resting  upon  him  (real  con- 
tract), or  delivered  in  advance  a  symbol  of  contract  (formal  con- 
tract) ;  of  the  other,  in  that  he  accepted  such  performance  or  such 
symbol.  There  were  variations  of  this  principle,  but  they  must 
be  considered  as  of  merely  superficial  character,  and  not  as  viola- 
tions of  the  underlying  idea.  Under  some  circumstances  an  obliga- 
tional  relation  might  be  created  by  a  unilateral  promise  or  other 
juristic  act. 

(1)  Although  the  legal  sources  contain  nothing  on  this  point, 
other  notices  which  we  possess  put  the  matter  beyond  doubt. 
As  in  the  Scandinavian  sagas,^  so  also  in  German  poetry,  epics, 
fairy  tales,  and  ballads,  it  is  frequently  related  how  a  king  promises 
his  daughter  as  wife  to  whomsoever  shall  kill  a  dragon,^  or  promises 
a  part  of  his  kingdom  to  whomsoever  shall  find  a  daughter  of  the 
king  who  has  been  kidnapped.  Kriemhilde  obligates  herself,  as 
the  poem  of  the  Rosengarten  informs  us,  to  give  to  every  hero  who 
shall  conquer  one  of  the  defenders  of  her  rose  garden,  roses  for  a 
crown,  and  also  "  an  embrace  and  kisses  ",  and  this  she  exactly 
performs  in  favor  of  each  of  the  victors.     In  such  case  there  is 

^  Sicgel,  "Das  Verspreelien  als  Verpflielitungs^und "  (1873);  v.  Lii- 
dinghnusen-Wolff,  "  Die  biiidende  Kraft  des  einseitigen  Versprechens  im 
heutigen  gemeinen  Privatrocht"  (1889). 

2  Soo  i\  Amira,  "Obligationenrecht",  II,  382  et  seq. 

^  Compare  the  fairy-tale  of  the  two  brothers  in  the  collection  of  the 
brothers  Grimm,  No.  00. 

513 


§  73]  THE   LAW   OF  OBLIGATIONS  [Book  III 

involved  a  so-called  "  Aiislubiing  "  (public  offer).  Whoever  ful- 
filled the  conditions  set  by  the  offeror  became  ipso  facto  his  credi- 
tor, and  acquired  at  the  same  time  a  legal  claim  to  the  performance 
promised  ;  this  could  not  be  denied  him,  for  the  offeror  had  irrevo- 
cably bound  himself  by  his  unilateral  promise.  The  conception 
of  the  Germanic  law  was,  clearly,  that  the  acceptance  of  the  sym- 
bol, of  the  hand-clasp,  or  of  the  oath  ("  Gelobniss  "),  which  in  the 
case  of  a  formal  contract  followed  act  for  act,  was  here  replaced 
by  the  performance  of  the  act  required.  The  unilateral  promise 
"  bound  the  offeror  to  his  word  "  ("  Gebundenheit  ans  Wort  ") ; 
created  an  obligation  in  the  sense  of  a  legal  duty  to  keep  one's 
promise  ("  Haltensollen  ",  supra,  p.  400).  Upon  performance  of 
the  condition  there  arose  the  legal  duty  to  give  the  promised  re- 
ward, and  therewith  an  enforceable  obligational  relation  between 
the  offeror  ("  Auslober  ")  and  the  acceptor  ("  Vollbringer  ", 
performer) . 

(2)  Tlie  binding  force  of  the  offer  ("  Antrag  "),  which  was  always 
recognized  in  Germanic  law,  rested  in  the  same  idea.  If  no  possi- 
bility existed  that  the  bilateral  formal  act  could  be  performed  "  uno 
actu  ",  as  was  necessarily  the  case  in  a  contract  concluded  between 
absent  parties,  permission  to  the  other  party  to  perform  at  a  later 
time  the  act  necessary  for  the  perfection  of  the  contract  was  bound 
to  appear  a  dictate  of  good  faith.  The  party  from  whom  the  offer 
proceeded  was  bound  by  his  unilateral  word,  that  is  by  his  offer, 
until  he  received  a  declaration  by  the  other  party.  Only  after  the 
running  of  the  time  expressly  set  for  acceptance  of  the  offer,  or 
only  when  according  to  usages  of  trade  he  need  not  longer  await 
the  receipt  of  an  acceptance,  was  he  free,  and  able  to  recall  his 
offer  or  treat  it  as  if  not  made. 

(II)  The  Modern  Law.  —  As  a  result  of  the  Reception,  it  is  true, 
the  principle  of  the  Roman  law  was  accepted,  according  to  which  a 
unilateral  promise  of  the  debtor  had,  as  such,  no  obligatory  force 
except  in  testamentary  dispositions,  but  became  legally  binding 
only  by  an  acceptance  on  the  part  of  the  creditor.  Some  of  the 
modern  codes,  also,  expressly  laid  down  this  rule ;  for  example, 
the  Prussian  "Allgemeines  Landrecht "  ^  and  the  Saxon  Code.^  The 
Roman  law,  however,  had  also  recognized  a  few,  although  unim- 
portant, exceptions  to  its  principle;   namely  the  legal  obligation 

*  I,  5,  §  .') :  "  Nude  covenants  ('  Geliibde  ').  like  nude  unilateral  prom- 
ises generally,  have  no  V)indinn:  force  under  the  private  law." 

*  §  771  :  "  An  unilateral  promise  to  perform  something,  made  inter  vivos, 
is  not  binding." 

514 


Chap.  IX]  GENERAL   PRIN^CIPLES  [§  74 

of  a  "  votum  "  and  of  a  "  pollicitatio  "  {i.e.  a  promise  given  to  a 
municipality).  These  Roman  exceptions,  however,  scarcely 
became  practical  matters  in  Germany ;  and  in  many  cases  they 
were  abrogated  simply  through  desuetude.  On  the  other  hand, 
the  exceptions  of  the  Germanic  law  above  referred  to,  the  binding 
force  of  a  public  offer  and  of  other  offers,  remained  almost  every- 
where in  force.  They  were  recognized  in  many  statutes,  notably 
in  the  Prussian  ''Allgemeines  Landrecht  "  (I,  5,  §  988,  96  et  seq.) ; 
and  the  binding  force  of  the  offer  between  absent  parties,  which  was 
indispensable  for  the  security  of  trade,  w^as  made  a  general  rule  in 
commerce  by  the  old  (General)  Commercial  Code  (§§  338  et  seq.). 
Both  rules  have  been  adopted,  in  turn,  by  the  present  Civil  Code 
(§§  657,  145  et  seq.).  The  Swiss  Code  of  Obligation  Law  (§§  8, 
3,  5)  also  expressly  adopts  them.  In  this  connection  special 
provisions  were  adopted  in  modern  statutes  regarding  the  cir- 
cumstances under  which,  and  the  moment  at  which,  a  contract 
between  absent  parties  should  be  regarded  as  concluded.  Until 
recently  a  diversity  of  legal  rules  prevailed  upon  this  matter.  The 
theory  requiring  a  receipt  of  the  acceptance  ("  Empfangstheorie  ") 
had,  indeed,  been  generally  adopted  by  the  Codes  (for  example, 
by  the  Prussian  "Allgemeines  Landrecht",  the  Austrian  and  Saxon 
Codes,  and  the  old  Commercial  Code ;  on  the  other  hand,  in  legal 
theory  and  practice  the  "  outward  expression  "  ("  Ausserungs-  ") 
theory  (Thol),  the  "  mailing  "  ("  Absendungs-  ")  theory,  and  the 
"  hearsay  "  ("  Vernehmungs-  ")  theory  were  also  represented. 
The  present  Civil  Code  has  created  uniformity  in  the  law,  follow- 
ing the  example  of  the  Prussian  and  the  Commercial  law,  by  adopt- 
ing the  "  receipt  "  theory.     The  same  is  true  of  the  Swiss  law. 

Topic  3.    The  Content  of  Obligations 

§  74.  Nude  Obligational  Promises.  (I)  The  Older  Law.  — 
Every  obligational  contract  is  of  course  concluded  for  a  particular 
reason  and  for  a  definite  purpose.  These  motives  ("  Beweg- 
griinde  ")  give  to  the  contract  its  distinctive  character,  and  con- 
tracts based  upon  identical  motives  may  be  classified,  as  regards 
their  nature,  in  typical  groups.  These  motives,  however,  need 
not  necessarily  always  appear  when  the  contract  is  concluded.  If 
they  do  not  appear,  if  the  basis  of  the  legal  duty  ("  Schuldgrund  ") 
is  not  named  when  the  obligational  promise  is  made,  then  the 
contract  is  one  that  cannot  be  classified  among  the  special  contract 
types  which  are  so  distinguishable  in  their  content. 

515 


§  74]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

As  in  the  older  Roman  law,  in  which  a  motive  was  not  stated 
in  the  "  stipulation  ",  so  in  the  old  Germanic  law  such  "  abstract  " 
or  nude  obligational  promises  were  known  from  the  earliest  times. 
Tliis  was  a  natural  consequence  of  the  formal  manner  in  which  the 
contract  was  concluded.  In  the  case  of  the  Roman  stipulation, 
as  in  the  Germanic  formal  contract,  the  force  that  created  the 
obligation  lay  solely  in  the  form,  in  tlie  giving  and  accepting  of 
mutual  promises  in  formalistic  words ;  which,  moreover,  in  the 
Germanic  law  were  given  audible  and  visible  expression  by  the 
delivery  of  a  symbol  of  contract.  Any  act  of  performance  ("  Leis- 
tung  ")  whatever  could  in  this  way  be  promised  and  made  legally 
effective  without  mention  of  the  reason  or  basis  of  the  legal  duty. 
Whoever  undertook  in  a  wed-contract  or  by  a  solemn  promise  in 
due  legal  form  ("rechtsformliches  Gclobniss"),  to  pay  a  sum  of 
money,  to  deliver  an  object,  to  render  a  service,  or  pay  a  penalty, 
or  the  like,  thereby  became  a  debtor  of  the  promisee ;  and  this 
simply  because  he  had  concluded  a  legally  valid  formal  contract, 
without  regard  to  the  motive  ("  Beweggrund  ")  that  might  under- 
lie the  promise  or  the  legality  of  the  "  causa  "  ("  Versprechens- 
grund  ").  Therefore,  it. was  also  unnecessary  to  mention  the 
"  Schuldgrund  "  in  instruments  creating  obligations ;  so-called 
"  indiscreet  "  documents,  that  is,  documents,  that  did  not  express 
the  "  Schuldgrund  ",  could  be  the  basis  of  a  judgment  against 
the  debtor.  For  it  followed,  for  purposes  of  a  lawsuit,  from  the 
obligatory  force  of  the  nude  obligational  promise  that  the  obligor 
who  sued  to  enforce  the  obligation  need  not  specify  a  "  Schuld- 
grund ",  and  that  the  judge  could  not  reject  such  an  "  unsub- 
stantiated "  action.  On  the  contrary,  it  was  sufficient  if  the 
plaintiff  satisfied  procedural  requirements  by  a  mere  allegation 
that  he  brought  the  action  "  von  gelobdes  wegen  "  ;  that  is,  upon 
the  basis  of  a  formal  contract. 

(II)  The  Modern  Law.  —  Notwithstanding  that  the  recogni- 
tion of  nude  obligational  promises  furthered  in  the  happiest 
manner  the  increase  of  money  transactions,  they  were  abandoned 
after  the  disappearance  of  the  formal  contract,  and  there  was 
adopted  in  the  common  law  in  their  place  the  Italian  theory  that 
a  promise  without  the  support  of  some  substantial  "  causa  "  was 
not  enforceable ;  so  that  a  document  containing  merely  a  promise 
of  performance  without  the  material  motive  ("  Grund  ")  therefor 
could  not  establish  a  claim.  In  particular,  there  prevailed  almost 
universally  in  the  literature  of  the  common  law  the  view, — repre- 
sented also  by  Germanists  of  note  {e.g.  Thol,  Gerber),  —  that  a 

516 


Chap.  IX]  GENERAL   PRINCIPLES  [§  74 

"  cautio  indiscreta  "  could  be  used  only  in  certain  exceptional  cases 
as  evidence,  and  that  ordinarily  a  person  giving  such  might  refuse 
performance  pending  proof  by  the  plaintiff  of  the  '*  causa  debendi." 
The  practice  of  the  common  law  was  also  adapted,  in  general,  to 
this  theory,  which  was  likewise  adopted  in  many  statutes,  for 
example  in  the  Territorial  Law  of  Wiirttemberg.  It  was  read 
by  implication  into  the  Prussian  "Allgemeines  Landrecht  "  in  the 
older  Prussian  practice  and  theory, although  in  Dernburg's opinion^ 
unjustifiably.  At  the  same  time,  however,  various  of  the  regional 
systems  maintained  the  validity  of  the  "  cautio  indiscreta  "  (for 
example,  the  Hamburg  Statutes,  I,  20,  Art.  2).  Moreover,  the 
old  view  was  never  abandoned  in  commerce^  the  nude  form  being 
retained,  in  particular,  in  bills  of  exchange.  This  rufe  was  made  the 
general  law  of  Germany  by  the  Bills  of  Exchange  Act  (Art.  4)  ; 
and  the  General  Commercial  Code  (§  301)  provided  that  it  should 
not  be  requisite  to  the  validity  of  "  orders  to  pay  or  deliver  ('  An- 
weisungen  ')  and  written  acknowledgements  of  obligations 
('  Verpflichtungsscheine  ')  made  out  by  merchants  for  the  de- 
livery of  money  or  a  quantity  of  fungible  things,  or  of  commercial 
paper  ",  that  they  include  a  statement  of  the  basis  of  the  obliga- 
tion. More  recently  the  same  principle  was  recognized  in  the  case 
of  bearer  paper.  In  several  codes  the  hypothecary  charge  ("  Hy- 
pothekenschuld  ")  was  also  developed  as  an  abstract  obligation, 
or  a  non-accessory  land-debt  ("  Grundschuld  ")  introduced  beside 
it  (supra,  p.  394), 

In  view  of  these  increasingly  prevalent  forms  of  the  nude  prom- 
ise in  positive  law,  and  because  of  the  slight  justification  in  the 
sources  for  the  theory  of  the  common  law,  a  return  to  the  old 
principles  became  more  and  more  imperatively  necessary.  In  this 
connection  Bahr,^  the  leading  champion  of  the  movement,  de- 
veloped the  theory  of  the  obligatory  force  of  a  nude  acknowledg- 
ment of  liability  ("  Anerkennungsvertrag ")  with  convincing 
arguments  which  immediately  found  acceptance,  notwithstanding 
the  opposition  of  some  scholars,  in  literature,  practice,  and  legisla- 
tion, —  for  example,  in  the  Saxon  Civil  Code  (§§  1397  et  seq.). 

The  present  Civil  Code  has  followed  this  tendency.  It  has 
established  the  validity  of  a  nude  or  "  unmotived  "  ("  abstrakte", 
"  selbstiindige  ",  §  780)  obligational  promise ;  and  equally  that 
of  the  nude  acknowledgment  of  a  legal  duty  ("  Schuldanerkennt- 
nis  ",  §  781),  though  indeed  with   the  restriction,  unknown  to 

1  "Lelirbuch  des  preussisehen  Privatrechts",  II  (5th  ed.,  1897),  36. 

2  "Die  Anerkennung  als  Verpflichtungsgrund "  (1855,  2d  ed.,  1867). 

517 


§  74]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

the  earlier  law,  that  such  contracts  must  be  at  least  concluded  in 
writing.  The  Swiss  Code  of  Obligation  Law  (§  17)  recognizes  the 
validity  of  a  nude  obligational  acknowledgment  without  such 
restriction. 

§  75.  Contracts  for  the  Benefit  of  Third  Persons.^  (I)  The 
Older  Law.  —  Germanic  law,  wliicli  allowed  the  formation  of  a 
formal  obligational  contract  by  the  giving  and  acceptance  of  a 
formal  promise  ("  Gelobniss  ")  that  was  consummated  by  tradi-" 
tion  of  a  staff,  was  in  a  position  to  recognize,  also,  without  question, 
those  contracts  in  which  the  person  to  whom  performance  was 
rendered  was  another  person  than  the  promisee.  For  upon  the 
acceptance  of  the  promise  this  immediately  passed  "  beyond  the 
power  of  the  one  who  gave  it  ",  and  he  might  "  be  held  to  it,  no 
matter  whether  he  had  promised  performance  to  the  promisee  or 
to  a  third  person."  ^  In  such  contracts  for  performances  to  or  for 
the  benefit  of  third  persons  the  creditor  promised  either  that  he 
would  perform  directly  to  a  third  person,  or  that  he  would  perform 
to  the  promisee  or  to  a  third  person.  If  performance  was  to  be 
made  for  the  benefit  of  a  third  person,  which  was  doubtless  ordi- 
narily although  by  no  means  necessarily  the  case,  —  it  was  not,  for 
example,  the  case  when  the  third  party  was  to  receive  performance 
merely  as  an  agent  ("  Bcauftragter  ")  of  the  promisee,  —  then 
the  contract  was  one  for  the  benefit  of  the  third  person.  A  third 
person  to  whom  performance  was  to  be  given,  either  certainly  or 
possibly,  might  be  named  by  the  parties  when  the  contract  was 
concluded.  But  it  was  also  possible  to  leave  his  appointment  to 
the  future ;  in  this  case  the  creditor  had  the  power  to  determine 
who  should  receive  performance. 

Such  contracts  satisfied  a  crying  need,  since  in  litigation  the 
older  law  recognized  powers  of  attorney  either  not  at  all  or  only  to 
a  very  limited  extent,  and  moreover  did  not  recognize  the  free 
assignability  of  contractual  claims  (infra,  §  78).  Consequently, 
such  contracts  were  widely  known  in  all  Germanic  countries,  and 
were  utilized  for  the  most  varied  purposes ;  as  an  example  of 
which  we  may  refer  to  the  fact  that  in  Iceland  "  it  was  customary 
to  give  to  religious  vows  ('  Geliibde  ')  the  forms  of  a  contract  for 
the  benefit  of  God  or  of  a  saint."  ^     Especially  in  Italy,  France, 

•  ^nmner  in  Z.  Hand.  R.,  XXII  (1877),  90  <^<  SC7.,  roprinted  in  his  "For- 
schungen",  54(j  et  ser/.;  Unger,  "Die  Vortrii^e  zu  (hinston  Dritter",  in 
Iherinq's  J.  B.,  X  (1871),  1-109;  Garcis,  "Die  Vertriige  zu  Gunsten 
Dritter"  (1873). 

*  V.  Amir  a,  "Recht",  .35. 

»v.  Amira,  "Obligationrecht",  II,  378. 

518 


Chap.  IX]  GENERAL   PRINCIPLES  [§  75 

and  Germany,  contracts  for  the  benefit  of  third  persons  were  in 
most  common  use  from  the  Frankish  period  onward.  Lessors,  for 
example,  provided  in  their  leases  that  the  rent  should  be  paid  to 
the  "  missus."  Very  often  donors  who  in  conveying  land  to  a 
Church  in  fee  reserved  the  usufruct,  reserved  not  to  themselves 
but  to  third  persons ;  as  for  example  to  their  wives  or  to  living  or 
expected  children,  or  to  their  descendants ;  or  else  the}'  perfected  a 
^'  donatio  post  obitum  "  by  providing  that  the  gift  should  pass  to 
the  Church  only  after  the  death  of  some  third  person  surviving  the 
donor,  and  should  remain  the  property  of  such  person  until  that 
time.  And  if  a  Salmann  was  entrusted  with  the  commission  of 
conveying  a  testamentary  gift  to  such  an  institution  after  the 
owner's  death,  the  contract  was  concluded  between  the  donor  and 
the  Salmann  for  its  benefit.  In  such  cases  a  clause  was  embodied 
in  the  deed  of  conveyance  ("Traditionsurkunde")  expressing  such 
dispositions  made  in  favor  of  third  persons,  —  for  example,  the 
reserve  clause  in  the  cases  just  mentioned.  Similar  clauses  oc- 
curred, as  may  be  proved  in  Italy  from  the  1100  s  onward,  in  pure 
obligation  instruments,  though  of  these,  for  evident  reasons,  a 
much  smaller  number  have  been  preserved.  That  obligational 
contracts  of  this  kind  were  customary  also  in  Germany  is  shown, 
for  example,  by  a  town  register  of  Stralsund  of  the  1200  s  :  accord- 
ing to  the  register,  a  burgher  promised  a  notar}^  that  in  case  the 
latter  should  not  return  from  his  student  tour  he  would  pay  the 
sum  owed  to  the  notary  to  such  person  as  the  latter  might  indicate 
in  his  testament.  Similarly,  it  might  be  that  a  person  paid  a  sum 
of  money  to  another  and  the  latter  obligated  himself  to  assure  to  a 
third  person,  in  return  therefor,  an  annuity  for  life. 

The  most  important  application  of  promises  for  the  benefit  of 
third  persons  in  the  medieval  law  was  in  the  treatment  of  bearer 
commercial  paper  payable  to  order  or  bearer,  which  developed 
from  a  concept  of  Germanic  law  into  one  of  the  most  important 
institutes  of  modern  business  (infra,  §  88). 

In  all  the  applications  of  the  principle,  including  those  last  named 
of  order  and  bearer  paper,  the  obligation  originated  in  the  usual 
manner,  in  a  formal  contract ;  that  is  in  a  bilateral  act,  usu- 
ally perfected  by  the  delivery  of  a  document,  and  not  in  a  uni- 
lateral promise  of  the  obligor.  The  right  of  the  third  person, 
for  whose  benefit  the  contract  was  concluded  between  the  promisor 
and  the  promisee  or  transferee  of  the  instrument,  doubtless 
sprang,  according  to  the  view  of  the  older  law,  directly  from  the 
conclusion  of  the  contract.     Joinder  of  the  third  person  in  the 

519 


§  75]  THE    LAW   OF   OBLIGATIONS  [BoOK   TIT 

contract,  or  assent  by  him  thereto,  was  not  at  all  necessary  for  the 
creation  in  his  favor  of  the  promisor's  obligation.  This  was 
created,  even  as  regarded  third  persons,  by  the  contract  itself; 
and  a  promise  once  given  could  therefore  not  thereafter  be  revoked. 

(II)  The  Modern  Law.  —  The  classic  Roman  law,  which  pro- 
ceeded from  the  principle  "  alteri  stipulari  nemo  potest  ",  never 
attained  to  any  general  recognition  of  contracts  for  the  benefit  of 
strangers.  With  few  exceptions  it  gave  a  right  of  action  against 
the  promisor  neither  to  the  promisee  nor  to  the  third  person. 
The  theory  of  the  native  law  was  wholly  displaced  by  this  conflict- 
ing principle  of  the  Roman  law.  The  prevailing  opinion  in  litera- 
ture and  practice  no  longer  held  it  correct  to  concede  the  third 
person  a  right  arising  directly  from  the  contract,  but  regarded  the 
right  as  arising  only  from  his  joinder  or  acceptance ;  until  then  the 
promisee  might  release  the  promisor,  or  the  contract  might  be 
revoked  by  "  mutuus  dissensus  "  of  the  contracting  parties.  This 
view,  also,  passed  over  into  the  modern  codes.  So  far  as  they 
recognized  such  contracts  at  all,  they  all  required,  as  preconditions 
to  the  acquisition  of  rights  by  third  persons,  either  ratification  and 
acceptance  (as  in  the  case  of  the  Bavarian  Territorial  Law),  or 
joinder  in  the  contract  with  the  consent  of  the  contracting  parties 
(as  in  the  Prussian  "Allgemeines  Landrecht  ",  I.  5,  §§  74-77),  or 
acceptance  of  the  performance  (Saxon  Code,  §  854). 

In  time,  however,  these  restrictions,  which  were  unknown  to  the 
older  law,  were  one  by  one  abrogated.  In  the  first  place,  in  a  few 
cases  which  evidently  constituted  exceptions,  an  immediate  acquisi- 
tion of  rights  by  the  third  person,  even  without  a  declaration  of 
accession,  was  either  preserved  or  newly  introduced.  So,  for 
example  (without  reference  for  the  moment  to  order  and  bearer 
paper,  which  followed  a  peculiar  course  of  development,  —  infra, 
§  88),  in  contracts  of  freight,  as  to  which  the  General  Commercial 
Code  (§  405  =  HGB,  §  435)  provided  that  after  the  carrier's 
arrival  at  the  place  for  delivery  the  consignee  named  in  the  bill 
of  lading  should  be  entitled  to  enforce  against  the  carrier,  in  his 
own  name,  those  rights  which  had  been  created  by  the  contract 
between  shii)per  and  carrier,  and  especially  to  require  the  latter  to 
deliver  the  bill  of  lading  and  hand  over  the  goods.  So  also  in  the 
case  of  the  purchase  of  a  mercantile  business,  the  result  of  which 
under  the  general  customary  law  was  that  the  creditors  of  the 
business  immediately  acquired  independent  rights  against  the  new 
owner  thereof.  So  also  in  the  case  of  life  insurance  policies,  the 
person  for  whose  benefit  the  insurance  was  taken  becoming  entitled 

520 


Chap.  IX]  GENERAL   PRINCIPLES  [§  76 

upon  the  death  of  the  insured,  eo  ipso,  to  an  independent  right 
against  the  insurer.  So  also,  according  to  invariable  customary 
law,  in  the  case  of  contracts  by  which  one  son  took  over  a  peasant 
holding  from  his  father.  Here,  the  son  who  so  took  over  the 
estate  was  obligated  to  render  to  his  mother  and  brothers  and 
sisters  certain  economic  compensation,  and  the  obligees  acquired 
directly  from  the  contract  a  corresponding  right  without  joining 
in  the  contract  and  without  having  declared  a  will  to  acquire ; 
they  could  demand  performance  exactly  as  if  the  father  were  dead 
and  had  so  provided  for  their  indemnity  in  his  testament. 

There  was  a  tendency  in  legal  theory,  which  became  increasingly 
strong  with  time,  to  go  beyond  these  exceptions  and  abandon  in  all 
cases  the  requirement  of  joinder.  Although  it  might  be  doubted 
whether  this  became  established  in  the  common  law,  the  new  Civil 
Code  has  adopted  this  view  without  qualification,  and  has  thereby 
given  the  law's  development  a  conclusion  in  accord  with  Germanic 
principles.  It  recognizes  the  validity,  on  principle,  of  contracts 
by  which  performance  is  promised  to  a  third  person,  and  attributes 
to  them  the  result  that  the  third  person  immediately  acquires  a 
right  to  compel  performance  (§  328).  It  has  expressly  recognized 
the  same  principle  in  contracts  of  life  insurance,  annuity  contracts, 
and  contracts  for  the  taking  over  of  another's  entire  property 
("  Vermogens- ")  or  lands  ('' Gutsiibernahmevertrage), — that 
is,  including  debts  owed  to  third  persons  (§  330).  The  Swiss  law 
has  taken  the  same  attitude  (OR,  §  112). 

Topic  4.    Performance  and  Non-Performance  of 
Obligations 

§  76.    Contractual    Penalties    and    Damages.^     (I)    The     Older 

Law.  (1)  Penalties  for  (Jrfault  in  the  earliest  law. — The  oldest 
obligations  were,  as  has  been  seen  {supra,  p.  4G0),  those  that 
resulted  from  misdeeds.  These  made  the  wrongdoer  the  debtor 
of  the  person  wronged  ;   the  latter  had  a  creditor's  claim  for  the 

1  Stobbe,  "Zur  Gesehiehte  des  deutsehen  Vertragsreehts "  (1855), 
31  ct  seq. ;  7?.  Loning,  "  Der  Vertragsbrueh  im  deutsehen  Recht "  (1876)  ; 
W.  Sickel,  "Die  Bestrafung  des  Vertragsbruchs  und  analoger  Reehtsverlct- 
zungcn  in  Deutschland"  (1876) ;  Hammer,  "Die  Lehre  vom  Sehadensersatz 
nach  dem  Sachsenspiegel  und  den  verwandten  Reehtsquellen",  no.  19 
(1885)  of  Gierke's  "Untersuehungen"  ;  Sjogren,  "tjber  die  romische  Con- 
ventionalstrafe  und  die  Strafldauseln  der  franldsehen  Urkunden"  (1896) ; 
A.  B.  Schmidt,  "Die  (rrundsiitze  iiber  den  Sehadensersatz  in  den  Volks- 
reehten",  no.  18  (1885)  of  Gierke's  "Untersuehungen"  ;  Heucr,  "Der  An- 
nahmeverzug  im  alteren  deutsehen  Privatrecht",  in  Beyerle's  "Beitriige", 
VI.  1  (1911). 

521 


§76]  THE   LAW   OF  OBLIGATIONS  [Book   III 

payment  of  the  statutory  hot.  In  so  far  as  the  hot  fell  to  the 
creditor,  —  a  fraction  of  it  was  delivered  to  the  public  authorities 
as  a  wite  ("fredus"),  —  it  si<;:nifie(l,  from  his  viewpoint,  com- 
pensation for  the  injury  he  had  suifered.  As  an  aspect  of  the 
process  of  outlawry  the  entire  property  of  the  wrongdoer  was 
indirectly  liable  to  the  person  wronged  ;  by  virtue  of  the  promise 
given  to  perform  the  judgment  rendered,  the  debtor  who  so  pledged 
his  faith  was  liable  with  his  property  for  the  payment  of  the  com- 
pensation awarded.  When  obligations  of  private  law  came  to  be 
created  by  voluntary  contracts  concluded  out  of  court,  the  idea 
remained  at  first  predominant  that  non-payment,  even  of  a  debt 
voluntarily  assumed,  was  a  punishable  wrong.  Penance,  by 
payment  of  a  statutory  bot,  was  therefore  required  for  it  also,  the 
amount  of  the  debt  being  correspondingly  increased.  The  debtor, 
however,  did  not  in  this  case  incur  a  penalty  by  mere  default,  as 
was  the  case  with  other  misdeeds.  The  debtor  must  "  be  put  in  a 
punishable  wrong  that  made  him  liable  for  a  bot "  ;  ^  the  obligation 
of  the  private  law  was  "  strengthened  "  into  one  of  the  criminal 
law.  This  was  accomplished  by  a  monition  ("  Mahnung  ")  in 
which  the  creditor,  in  legally  prescribed  manner,  called  upon  the 
debtor  to  fulfill  his  obligation,  to  pay  his  debt,  or  to  deliver  the 
thing  which  was  the  subject  of  the  obligation.  The  "Lex  Salica" 
describes  clearly  this  monitory  procedure  in  both  the  forms  known 
to  it  under  the  law  of  private  obligations.  In  the  case  of  the 
"  fides  facta  ",  the  pledge  of  faith  {supra,  p.  493),  the  creditor  was 
bound,  when  the  time  of  payment  arrived,  to  demand  payment  of 
the  debtor  extra-judicially  at  his  home,  and  before  witnesses.  If 
the  debtor  thereafter  failed  to  pay  the  monition  made  him  guilty 
of  default,  for  which  he  forfeited  a  bot  of  fifteen  shillings ;  which 
in  case  of  continued  refusal  to  pay  could  be  collected  by  the 
creditor  along  with  the  contractual  debt  by  suit.  If  after  judg- 
ment was  given  the  debtor  still  did  not  pay,  three  further  demands 
were  made  from  week  to  week,  each  of  which  increased  the  debt 
by  three  shillings ;  as  a  last  resort  the  creditor  resorted  to  the 
extra-judicial  right  of  distraint  which  he  possessed,  as  regards  the 
contractual  debt  by  virtue  of  the  pledge  of  faith,  and  as  regards  the 
penalties  incurred  by  virtue  of  the  judgment  ("  L.  Sal.",  Tit.  50). 
In  case  of  a  loan  ("  res  prrestita  ")  -  the  debtor  must  have  been 

'  Brunner,  "Geschichte",  II,  .520. 

^  Elinson,  "Dio  Klagc  dor  'res  praestita'  in  der  Lox  Saliea  und  ihre 
Entwioklunp  znin  Mahnverfahron "  (Broslau  dissertation,  1910);  Gierke, 
"Schuld  und  Haftung",  165  ct  scq. 

522 


Chap.  IX]  GENERAL   PRINCIPLES  [§  76 

thrice  admonished  by  the  creditor  to  return  the  chattel,  the  debt 
being  increased,  here  also,  by  three  shillings  for  each  demand. 
If  he  still  did  not  perform  his  obligation  he  incurred  a  bot  of  fifteen 
shillings,  which  could  be  recovered  by  legal  action  along  with  the 
nine  shillings  ('*L.  Sal.",  Tit.  52).  Here  again  the  payment  of  the 
bot,  or  the  distraint  permitted  for  its  recovery,  was  a  penalty  for 
the  breach  of  contract  and  compensation  for  the  damage,  and 
the}'  inured  to  the  creditor  from  the  failure  to  perform  or  duly  to 
perform  the  obligation.  Similar  provisions  occur  in  the  other  folk- 
laws. Indeed,  enforcement  of  contracts  by  remedies  of  the  criminal 
law  was  characteristic  of  Germanic  law.  How  long  it  continued 
to  express  the  popular  legal  sentiment  is  clearly  shown  in  the  wide- 
spread custom,  connected  with  the  Roman  documentary^  system 
and  the  "  stipulatio  duplse  ",  of  embodying  in  contracts  express 
provisions  penalizing  the  breach  of  the  agreement  stated  in  the 
instrument.  It  may  appear  singular  that  the  parties  should 
prescribe  by  private  agreement  what  existed  independently  by 
force  of  law,  namely  the  penal  character  ("  Strafbarkeit  ") 
of  a  breach  of  contract.  The  explanation  of  the  use  of  such 
penal  clauses,  so  extremely  common  precisely  in  the  Prankish 
period,  may  perhaps  lie  in  the  fact  (among  others)  that  with  the 
disappearance  of  the  bot  system  the  statutory  penal  law  of  con- 
tracts was  becoming  increasingly  weak,  so  that  the  parties  found 
themselves  compelled,  in  individual  cases,  to  provide  by  special 
declaration  the  security  afforded  by  the  threatened  penalty. 
Such  penal  clauses  also  increased  the  probative  value  of  the  docu- 
ments. 

Where  the  criminality  of  the  delinquent  debtor  depended  upon 
monition  by  the  creditor,  — •  in  other  words,  when  the  debtor 
became  in  default  only  after  monition,  —  the  debts  were  known 
as  "  fetch  "  {"  Hoi-  ")  debts  ;  because,  monition  being  necessary, 
the  creditor  must  seek  his  money  at  the  debtor's  home. 

(2)  The  medieval  law.  —  In  the  Middle  Ages  a  default  of  the 
debtor  was  likewise  regarded  as  an  unlawful  act ;  so  that  in  Scan- 
dinavian law,  for  example,  default  in  performance  was  always  re- 
garded, in  theory,  as  a  delict  ("  Ubeltat  ").  The  statutory  penal- 
ties for  default,  however,  which  became  less  prominent  already 
in  the  Frankisli  period,  now  completely  disappeared.  In  fact 
they  ceased  to  be  indispensable,  inasmuch  as  the  creditor's  power  of 
distraint  under  the  contract  also  secured  him,  in  case  of  default,  — 
from  the  instant  that  delayed  performance  could  be  regarded  as 
non-performance,  —  a  recourse  against  the  chattels  of  the  debtor 

523 


§  7GJ  THE    LAW    OF   OBLIGATIONS  .  [BoOK   III 

that  were  liable  for  his  debt.  The  idea  of  a  penalty  arising  directly 
from  mere  delay  was  preserved  only  in  the  primitive  custom,  — 
widespread  in  the  JNIiddle  Ages  and  even  later,  —  of  the  "  Rut- 
scherzins."  This  rent-for-delay  ("  Zweigilt  ",  "  census  promo- 
bilis  ")  was  a  sum  paid  by  a  rentaler  ("  Zinsmann  ")  as  a  penalty 
for  delay,  in  strict  accordance  with  the  above  mentioned  pro- 
visions of  the  Salic  folk-law.  It  progressively  increased  the 
amount  of  the  debt,  usually  doubling  it.  Indeed,  the  "  Rut- 
scherzins  "  proper,  as  we  find  it  in  the  Sachsenspiegel  and  in  many 
dooms,  was  not  increased  by  years,  as  was  at  times  provided  in 
older  documents,  but  by  days  and  hours.^ 

With  these  exceptions  it  was  left  exclusively  to  the  parties,  in 
medieval  times,  to  agree  upon  liquidated  damages  in  case  of  delayed 
performance,  the  debtor  promising  either  to  pay  such  damages  as 
interest-for-delay  or  to  make  good  the  damages  otherwise,^  In 
this  connection  the  creditor,  who  had  the  burden  of  pro\'ing  the 
damages,  was  very  often  empowered  by  the  debtor  to  fix  their 
amount  without  oath  and  without  witnesses,  bj^  his  bare  word  ; 
a  clause  which  bore  the  name  in  Steiermark  of  "  Schadenbund  " 
("  damage-contract  ",  "  Bund  "  =  "  Gcdinge  ").  It  was  also  a 
favored  practice,  especially  in  South  Germany,  to  permit  the 
creditor  to  raise  the  money  owing  him  at  a  Jew's,  to  whom  the 
debtor  must  then  pay  the  defaulted  sum  with  interest  (so-called 
"raising  money  on  damages  ",  "Geld  auf  Schaden  nehmen  "). 
Indeed,  the  parties  might  go  even  further  and  agree  that  the  credi- 
tor should  have  a  right,  in  case  of  default  by  the  debtor,  to  with- 
draw from  the  contract ;  in  which  case  he  was  occasionally  also 
given  an  express  power  of  sale  by  way  of  self-help. 

The  medieval  law  had  thus  attained  a  rule  of  compensation,  — 
at  least  when  we  assume  a  precedent  agreement  of  the  parties,  — 
that  was  adjusted  to  actual  damages,  and  which  corrected  the 
rigidity  of  the  old  contractual  penalty.  Of  course  a  claim  for 
such  compensation  existing  by  general  rule  of  law  was  not  yet 
recognized.  At  the  same  time,  in  some  legal  systems  of  the  later 
^liddle  Ages,  notably  in  those  of  the  Ilanseatic  cities,  effect  was 
already  given  to  this  principle,  at  least  in  certain  cases.  Under 
these  systems,  in  contracts  that  provided  for  the  delivery  of  things 
or  performance  of  services,  the  party  not  j)erforming  the  contract 

*  Ssp.,  I,  .54,  §  2.  See  this  and  other  extracts  in  Grimm,  "Rechts- 
altertiimer",  I,  534  et  seq.  Compare  also,  for  example,  the  Aspel  manorial 
law. 

2  System.  Schoffenrecht,  III,  2  c,  23. 

524 


CllAP.  IX]  GENERAL    PRINCIPLES  [§  76 

was  obligated  to  pay  a  sum  proportioned  to  the  other's  interest 
under  the  contract.  Under  a  contract  of  hire  ("  Miete  "),  in 
particular,  the  party  who  wrongfully  withdrew  therefrom  was 
bound  to  pay  either  an  entire  or  a  half  year's  rent,  according  to 
circumstances.  Under  similar  circumstances,  in  contracts  for  labor 
and  for  freightage  all  or  half  the  wages  and  the  whole  or  half  of  the 
freight  charges  were  forfeited.  Such  obligations,  incurred  in  lieu 
of  performance  of  the  original  contract,  really  involved  a  payment 
of  damages  fixed  by  statute  and  quite  independent  of  the  parties' 
agreement.  JNIoreover,  the  vendor's  power  to  withdraw  from  his 
contract  in  case  of  the  vendee's  default  was  likewise  expressly 
granted  by  statute  in  many  town  laws.^ 

With  the  disappearance  of  statutory  contractual  penalties  and 
the  alteration  of  execution  procedure,  the  extra-judicial  monition 
also  fell  into  disuse.  A  monition  was  no  longer  a  precondition 
either  to  private  or  public  distraint  based  upon  a  formal  ("  Wett-") 
contract,  or  to  judicial  enforcement  of  contractual  penalties  fixed 
by  agreement.  With  this  change,  at  least  those  money  debts  for 
whose  payment  a  definite  time  was  agreed  upon  ceased  to  be 
"  fetch  "'("  Hoi- ")  debts;  they  became  "bring-"  ("Bring-") 
debts.  In  Germany,  though  not  in  France,  the  rule  was  estab- 
lished and  retained  authority  even  down  to  present  days  that 
the  debtor  who  had  promised  to  make  a  payment  on  a  certain 
day  must  at  that  time  tender  payment  to  the  creditor ;  in  this 
case  default  did  not  result  from  a  fruitless  monition,  but  from 
omission  at  the  time  agreed  upon  ("dies  interpellat  pro 
homine").^  To  this  rule  those  cases  were  an  exception  in  which 
a  vain  monition  was  required,  in  the  old  manner,  as  a  precondition 
to  collection  of  the  debt  by  legal  action.  This  was  the  rule  for 
debts  based  upon  so-called  "  presentation  "  commercial  paper 
(infra,  §  88). 

(II)  The  Modern  Development.^  —  The  modern  law  recognized 
the  unqualified  statutory  duty  of  a  delinquent  debtor  to  make 
good  the  damages  resulting  from  his  default.  In  particular,  after 
hesitation  at  the  outset,  statutory  interest  for  default  was  every- 
where introduced.  The  Recess  of  the  deputation  of  the  imperial 
estates  of  1600  provided  that  in  case  of  a  money  loan  ("  Darlehn  ") 

»  "  Munehener  Stadtroeht ",  Art.  39.  To  the  same  effect  today  in  the 
Austrian  Code,  §  1062:  "The  vendee  is  bound  to  accept  dehvery  of  the 
chattel,  either  immediately  or  at  the  time  agreed  upon;  if  ho  does  not, 
the  vendor  becomes  entitled  to  refuse  delivery  to  him." 

=  Ssp.,  I,  ().^),  §4. 

3  Hedemann,  "  Fortschritlo  des  Zivilrechts  ",  1,  81  ct  seq.,  135  el  seq. 


§  70]  THE    LAW    OF    OBLIGATIONS  [BoOK   III 

the  creditor  should  receive  five  per  cent,  interest  after  default,  and 
if  his  damages  should  be  greater  he  might  recover  the  excess. 
Thus  he  was  given  a  choice  between  special  interest  after  default, 
and  damages.  This  rule  was  later  extended  to  all  money  debts, 
and  with  variations  in  detail  was  adopted  in  the  regional  systems. 
Other  codes  or  statutes  continued,  it  is  true,  to  allow  interest  for 
default  in  the  case  of  money  loans  only,  and  did  not  allow  a  claim 
for  greater  damages.  This  was  true  of  the  Prussian  "  Allgemeines 
Landrecht  "  (save  incases  of  gross  negligence)  and  of  the  Code  Civil. 
The  interest  rate  after  default  was  fixed  without  regard  to  the 
rate  fixed  in  the  contract,  however  low ;  usually  at  five  per  centum 
(in  some  legal  systems,  —  for  example  the  Austrian  Code,  —  at 
four,  in  the  General  Commercial  Code  at  six)  for  commercial 
transactions.  If  the  contract  interest  rate  was  higher  than 
five  per  centum  a  correspondingly  higher  rate  was  authorized 
as  the  statutory  interest  after  default.  The  final  result  of  the 
development  was  that  the  Civil  Code,  following  the  rule  last  men- 
tioned but  with  the  addition  that  additional  damages  might  be 
collected,  has  fixed  the  interest  on  defaulted  money  debts  at  four 
per  centum  (§  288),  and  that  the  Commercial  Code  (§  352)  has 
fixed  the  rate  for  commercial  debts  at  five  per  centum.  The  Swiss 
Code  of  Obligation  Law  fixes  the  statutory  interest  rate  in  all 
cases  at  five  per  centum  (§  563). 

In  such  statutory  interest  for  default  we  may  see  an  after-effect 
of  the  invariable  contractual  j)enalties  of  the  earliest  law,  since 
they  can  be  demanded  without  regard  to  the  damage  actually 
suffered,  and  therefore  even  although  this  be  less. 

In  accord  with  the  principle  of  free  contract  recognized  in  modern 
times,  contractual  penalties  might  be  fixed  by  agreement  of  the 
parties  under  the  earlier  modern  statutes  as  under  the  present  law ; 
that  is,  either  in  addition  to  performance  or  in  place  of  jicrform- 
ance,  —  in  the  latter  case  as  a  minimum  interest.  In  such  cases, 
and  in  the  absence  of  specific  provision,  the  creditor  has  a  choice 
between  the  two  claims;  if  the  choice  is  left  to  the  debtor,  such 
penal  interest  assumes  the  character  of  smart-money  ("  Reugeld  ", 
"  "\Vandeli)on  ").  In  place  of  the  statutory  restrictions  upon  con- 
tractual penalties  that  were  formerly  conunon,  the  i)resent  Civil 
Code  lias  introduced  a  right  of  judicial  reduction  (§  343) ;  and  a 
similar  right  is  recognized  also  in  the  Swiss  law  (OR,  §  103,  3). 

In  certain  contracts,  particularly  in  sales,  a  right  was  even  given 
to  the  (Tcditor  in  the  Middle  Ages  to  refuse  performance  by  a 
debtor  who  had  defaulted,  and  not  only  to  demand  damages  for 

52G 


Chap.  IX]  GENERAL   PRINCIPLES  [§  77 

non-performance  but  to  withdraw,  himself,  from  the  contract. 
This  right  has  been  adopted  and  generahzed  by  the  Code  Civil, 
the  Swiss  Code  of  Obligation  Law  (§  107),  the  German  Commercial 
Code,  and  the  present  Civil  Code ;  not,  however,  without  subject- 
ing it  to  definite  conditions,  which  are  differently  regulated  in  the 
case  of  the  private  and  the  commercial  law  (BGB,  §  326 ;  HGB, 
§376). 

Finally,  even  after  the  Reception  the  authority  of  the  medieval 
rule  "  dies  interpellat  pro  homine  "  was  for  a  time  maintained  by 
the  customary  law ;  and  later  this  was  adopted  in  many  codes, 
including  the  Prussian  and  the  Saxon,  and  the  Swiss  Code  of 
Obligation  Law  (§  102).  It  is  the  rule  today  of  the  present  Civil 
Code  (§  284) ;  save  that  debts  represented  by  "  presentation  " 
paper  have  of  course  continued  to  be  "  fetch  "  ("  Hoi-  ")  debts. 

§  77.  Fault  ("  Verschulden  ")  and  Accident  ("  Zufall  ")  in  the 
Law  of  Contract.^  (I)  The  older  Law.  —  (1)  General  ijrinciple.  — ■ 
In  deciding  the  question  whether  and  to  what  extent  a  wrongdoer 
shall  answer  for  his  illegal  conduct,  the  law,  as  finally  developed, 
examines  the  will  of  the  guilty  person,  and  adjusts  his  liability  to 
the  degree  of  his  mental  fault.  It  distinguishes,  upon  the  ground 
of  certain  general  principles,  —  intent,  negligence,  and  accident, 
—  whether  the  question  involved  be  one  of  tort  unassociated  with 
contract  or  a  simple  breach  of  contract. 

The  older  law,  which  originally  attributed  importance  only  to 
what  was  physically  sensible,  did  not  recognize  such  distinctions. 
The  criminal  law,  therefore,  did  not  inquire  whether  in  a  specific 
case  the  act  causing  damage  involved  "  dolus  ",  "  culpa  ",  or 
"  casus."  -  At  the  same  time  it  did  not  entirely  disregard  the 
distinction  between  voluntary  and  involuntary  actions.  For 
even  in  early  times  heed  was  so  far  given  to  the  quality  of  the 
wrongdoer's  will,  in  measuring  penalties,  that  one  who  was  guilty 
neither  of  negligence  nor  premeditation  was  more  leniently  treated 
than  when  he  had  acted  with  malevolence.  As  regards  the 
question,  however,  of  compensation  for  damage  done  by  tort  or  by 
breach  of  contract,  no  corresponding  distinction  was  recognized 
between  a  voluntary  act  and  an  involuntary  act  ("  Ungefahr  "), 
On  the  contrary,  as  the  bot  imposed  for  the  act  in  the  case  of 
damages   by   tort    ("  ausservertragliche  Schadigung  ")    must   be 

1  Muller-Erzhach,  " Gef ahrdungshaf tung  und  Gef ahrtragung "  (1912), 
particularly  225  et  seq.;  also  in  Arch,  zivil.  Praxis,  CVI  (1910),  309-476, 
CIX  (1913),  1-143. 

2  Brunncr,  "Gesehichte",  II,  544. 

527 


§  77]  THE   LAW   OF   OBLIGATIONS  [Book  TIT 

paid  iiiidtT  all  circumstances,  in  so  far  as  it  represented  compensa- 
tion, so  in  contracts  the  promise  must  be  performed  under  all 
circumstances,  or  else  the  damages  be  paid  that  were  prescribed  by 
the  law  or  fixed  by  the  contract  for  non-performance.  The  objec- 
tive result  of  the  act  or  the  non-performance,  —  the  damage,  the 
loss  of  property,  —  was  alone  considered,  and  imposed  upon  the 
debtor.  His  state  of  mind  was  wholly  disregarded.  Under  the 
sensuous  and  formal  view  of  the  old  law,  even  one  through  whose 
negligence  damages  resulted  was  bound  to  give  compensation, 
despite  the  absence  of  intent ;  for  his  conduct  was  responsible 
for  the  doing  of  the  act,  or  for  the  non-performance  of  the  legal 
duty.  To  this  extent  he  was  therefore  legally  in  fault ;  namely, 
the  fault  of  inattentiveness.  Indeed,  the  very  concept  of  accident 
was  quite  unknown,  or  at  least  was  scarcely  recognized,  in  the 
old  law.  That  always  sought  a  responsible  person,  and  whenever 
it  could  find  such  it  attributed  to  him  some  fault  ("  Schuld  "), 
and  therewith  the  duty  to  give  damages.  It  did  this  wherever 
the  cause  of  an  unintended  eflPect  was  linked  in  any  way  with  the 
immediate  sphere  of  an  individual's  action  ("  Lebenssphiire  "),^ 
or  sprang  from  such  sphere.  It  is  quite  possible,  in  this  con- 
nection, to  speak  of  an  "  intrinsic  "  ("  innerer  ")  accident. - 
But  it  must  be  borne  in  mind,  in  so  doing,  that  in  the  view  of 
the  old  law  there  was  in  such  cases  no  accident  at  all,  but  an 
act  for  which  a  particular  man  was  accountable ;  an  act,  more- 
over, which  could  be  attributed  to  him  with  good  reason,  — 
for  a  man  takes  all  his  happiness  from  the  environment  of  his 
individual  life  ("  Lebenskreis"),  whether  or  not  he  may  have 
deserved  it,  and  should  therefore  accept  misfortune  that  arises 
within  that  environment  even  though  it  also  be  undeserved 
by  him.^  Only  those  events  were  regarded  as  properly  accidents 
("extrinsic  accident",  "iiusserer  Zufall"),^  as  misfortunes  ("  Un- 
gliick  "),  which  could  not  be  associated  with  an  individual's  life  even 
in  tliis  loose  way.  And  these  accidents  were  not  taken  account  of 
by  the  law.  The  person  declared  responsible  could  avoid  the 
responsibility  thus  imposed  upon  him  only  when  he  could 
prove  that  he  had  found  himself  in  circumstances  of  positive 
("  echte  ")  necessity.  As  cases  of  positive  necessity,  the  town- 
law  of  Gorlitz,  in  agreement  with  the  sources  of  the  Frankish  period, 
designated,    for   example,    sickness,    imprisonment,    and    service 

'  Brunner,  "  Gesr-hiohto  ",  TI,  549. 

2  Conack,  "Biirgorlichcs  Iteoht",  1  ((ith  cd.),  291  et  seq. 

« Ibid.,  292.  ■•  Ibid. 

528 


Chap.  IX]  GENERAL   PRI?^CIPLES  [§  77 

under  the  king  ("  suche  ",  "  unde  gevengnisse  ",  "  unde  des  riches 
dienst  ")} 

The  result  in  the  older  law  was  therefore  a  very  strict  respon- 
sibility of  an  obligor.  It  was  illustrated,  notably,  in  the  following 
applications. 

(2)  Following  property  ("  Folgerungen  ").  (A)  Liability  of 
BAILEES.  —  Whoever  has  received  a  thing  belonging  to  another, 

—  for  example  a  borrower  or  pledgee,  —  was  theoretically  bound 
to  return  it  in  due  time,  under  all  circumstances  {supra,  p.  44.3). 
This  rule  followed  with  absolute  necessity  from  the  rule  "  hand 
must  warrant  hand  "  {supra,  p.  408  et  seq.).  The  owner  of  a 
thing  entrusted  to  another  must  rely  solely  on  the  faith  of  the 
bailee  ("die  getreue  Hand  ")>  not  on  a  third  person;  but  he 
could  do  this  under  all  circumstances,  and,  notably,  even  when 
the  thing  had  been  stolen  from  the  bailee  by  a  third  person. 
The  bailee's  loss  of  possession  by  larceny,  in  the  sense  of  the 
medieval  law,  may  therefore  be  designated  "  the  legal  type  of 
'  culpa  '."  2 

But  it  was  precisely  in  certain  cases  of  things  received  in  bail- 
ment that  the  principle  of  unlimited  liability  broke  down,  even  in 
early  times ;  namely,  whenever  an  "  external  "  accident  occurred, 
a  misfortune  in  the  sense  above  indicated.  Such  exceptions  were 
treated  at  first  in  the  formalistic  manner  then  favored  :  regardless 
of  the  circumstances  of  the  particular  case,  certain  external  facts, 

—  at  first  a  few,  then  an  increasing  number,  —  were  treated  as 
typical  cases  of  misfortune,  and  their  existence  deprived  the  owner 
of  all  claims  for  damages  against  the  bailee. 

One  of  the  oldest  typical  exceptions  was  the  death  of  animals ; 
that  is  a  natiu-al  death,  of  which  a  person  was  wholly  innocent,  a 
so-called  "  common  "  ("  gemeine  ")  death.^  Other  similar  cases 
of  misfortune  were  fire,  storm,  flood,  avalanches,  the  collapse  of 
houses,  bad  harvests,  Sticken  der  Frucht,  depredations  by  wolves, 
plundering  by  pirates,  etc.  In  the  law  of  transportation  it  was 
usual  to  employ  the  suggestive  phrase  "  acts  of  God  and  the  King's 
enemies  "  ("  Gottesgewalt  und  Herrennot  ") ;  if  such  things 
caused  damage  to  a  shipment  of  goods  there  could  be  no  question 
of  obligation. 

Despite  the  recognition  of  these  exceptions,  however,  no  such 
clear  and  fundamental  principle  was  developed,  for  example,  as 

1  Art.  138,  in  Gaupp,  "Das  alte  Magdeburgische  Recht"  (1826),  318. 

2  Frnnken,  " Franzosisches  Pfandrecht",  326. 

3  Swsp.  (G),  185. 

529 


§  77]  THE    LAW    OF    OBLIGATIONS  [BoOK   III 

that  liability  always  existed  solely  for  legal  duty  ("  Schuld  ")  and 
never  for  misfortune.  On  the  contrary  it  depended  upon  the  legal 
relations  of  the  specific  case  whether  tlie  liability  of  the  possessor 
of  a  thing  was  for  legal  duty  only  or  for  legal  duty  and  misfortune. 
The  Sachsenspiegel,  also,  did  not  get  beyond  such  a  casuistic 
mode  of  treatment.^ 

At  the  same  time  importance  was  attributed,  even  at  an  early 
date,  to  certain  collateral  circumstances  that  might  accompany 
such  cases  of  misfortune.  Some  of  the  folk-laws  already  made  a 
distinction  according  as  the  bailee  had  taken  animals  for  pay  or 
gratuitously,  excluding  liability  in  the  latter  case  only.  Here,  and 
in  later  sources  which  further  developed  these  ideas,  the  considera- 
tion involved  was  that  whoever  derives  advantage  from  receiving 
something  is  to  be  treated  more  severely  than  one  who  has  accepted 
it  merely  for  another's  accommodation. 

Another  idea,  which  likewise  appeared  as  early  as  in  the  folk- 
laws and  was  later  frequently  applied,  emphasized  the  question 
whether  in  such  a  case  of  misfortune  a  thing  of  another  person 
(the  bailor)  was  alone  destroyed  or  injured,  or  with  it  something 
of  the  custodian.  And  under  the  assumption  that  the  custodian 
had  given  proper  care  only  in  the  latter  case,  he  was  relieved  from 
liability  for  damages  in  that  case  only.  This  rule  reminds  one  of 
the  Roman  "  diligentia  quam  in  suis  rebus  adhibere  solet " ; 
although  in  its  pure  and  typical  form  it  was  very  much  less 
perfect.  Here  again  it  was  an  adherence  to  typical  forms  that 
prevented  a  satisfactory  distinction  in  theory;  there  was  lacking 
the  necessary  power  of  abstract  thought. 

(B)  Liability  of  some  persons  for  others. — From  the 
princii)le  that  only  "  external "  accident  could  be  regarded  as 
innocent,  there  resulted  a  far-reaching  liability  of  some  persons 
for  others.  According  to  Germanic  law  the  sib  was  responsible 
for  the  conduct  of  its  members,  the  house-lord  for  the  conduct  of 
the  members  of  the  household,  the  land-lord  for  that  of  his 
villeins  ("  Hintersassen  ").  In  the  same  way  the  owner  was 
answerable  for  the  damage  which  his  slaves  might  do,  and  the  owner 
of  a  business  or  master  of  dependent  servitors  for  the  damage  which 
his  dependents  might  do  ;  and  similarly  he  was  liable  in  damages  to 
them,  in  turn,  for  misfortunes  they  suffered.  When  an  act  was  in 
such  cases  attributed  to  another  than  the  actual  actor,  —  to  the 
house-father,  the  master,  etc.,  —  the  reason  for  this  was  simply 
that  such  harmful  event  originated  in  the  personal  environment 
1  Ssp.,  Ill,  5,  §§  3-5.  {Supra,  p.  470.) 
530 


Chap.  IX]  GENERAL  PRINCIPLES  [§  77 

("  Lebenssphare  ")  of  such  other  person.  To  be  sure,  it  was  from 
his  viewpoint  an  accident,  but  it  was  a  "  personal  "  ("  innere  ") 
accident.  The  old  law  considered  it  juster  in  such  cases  to  impose 
the  duty  upon  the  house-lord,  the  owner  of  the  business,  etc., 
than  to  let  the  injured  person  bear  it. 

(II)  The  Modern  Development.  —  The  principles  of  the  native 
law  were  displaced,  for  the  most  part,  by  those  of  the  ahen  law. 
The  latter 's  theory  of  "  culpa  ",  with  its  degrees  of  "  culpa  lata  " 
and  "  culpa  levis  ",  —  to  which  there  was  frequently  added, 
following  the  theory  of  the  medieval  Canon  Law,  the  additional 
degree  of  "  culpa  levissima  ",  —  became  the  rule  of  the  common 
law ;  and  this  threefold  division  passed  thence  into  the  modern 
codes,  —  for  example,  into  the  Prussian  "  Allgemeines  Landrecht." 
The  Roman  concept  of  "  diligentia  quam  in  suis  ",  —  also  known 
as  "  culpa  in  concreto  ",  —  was  capable  of  merger  with  views 
already  prevailing  in  native  practice  {supra,  p.  529).  The  con- 
ception of  "  culpa  levissima  "  has  been  abandoned  by  the  law  in  its 
latest  stage ;  aside  from  the  "  care  "  exercised  in  one's  own  affairs, 
the  Civil  Code  recognizes  only  gross  and  ordinary  negligence. 
In  the  absence  of  premeditation  liability  is  generally  imposed 
wdienever  the  latter  is  present,  —  that  is,  for  disregard  of  the  care 
properly  requisite  to  human  intercourse  (§  276) ;  whereas  when 
only  the  care  exercised  in  one's  private  affairs  is  required,  liability 
exists  for  gross  negligence  at  least.  This  relaxation  of  the  requisite 
of  care  is  made  in  favor  of  a  gratuitous  bailee,  of  a  partner,  of 
spouses,  of  parents  in  the  exercise  of  parental  authority,  and  of  an 
initial  heir  ("  Vorerbe  ",  —  other  heirs  taking  in  remainder). 

The  Roman  rule  also  became  controlling  in  the  distinction 
between  legal  fault  ("  Schuld  ")  and  accident.  The  old  materialis- 
tic ("  sinnvolle  ")  distinction  between  "  external  "  and  "  internal  " 
accident  was  abandoned,^  and,  in  general,  the  principle  was 
recognized  that  nobody  is  responsible  for  accident. 

Nevertheless,  the  strict  rules  of  the  Germanic  law  regulating 
liability  for  accident  were  in  some  cases  preserved  ;  indeed,  in  very 
recent  years  their  scope  of  application  has  even  been  somewhat 
widened.  The  cases  thus  treated  are  those  where  liability  is 
imposed  for  accident  except  when  due  to  constraining  power 
("bis  zu  hoherer  Gewalt",  "vis  maior  ").  The  modern  conception 
of  constraining  power  was  by  no  means  exclusively  derived  from  the 
Roman  law  and  its  rules  concerning  liability  of  "  naut?e  ",  "  cau- 
pones  ",  and  "  stabularii  "  —  who  upon  proof  of  a  "  vis  maior  " 
^  Cosack,  "  Burgerliehes  Recht",  I  (3d  cd.),  240. 
531 


§  77]  THE    LAW    OF    OBLIGATIONS  [BoOK   III 

could  free  themselves  from  the  unlimited  liability  otherwise  resting 
upon  them.  On  the  contrary  there  is  also  vital  in  it  the  native 
law,  with  its  distinction  of  "  internal  "  and  "  external  "  accidents. 
The  conception  of  "  vis  maior  "  is  applied  especially  in  modern 
commercial  law,  particularly  in  the  law  of  railway  carriers.  A 
railroad,  unlike  an  ordinary  carrier  of  freight  by  land  or  sea  or 
river,  is  liable  by  virtue  of  positive  provision  in  the  Commercial 
Code  (§  45G)  for  misfortunes  ("  Unfiille  ")  to  the  freight  it  has 
accepted ;  and  also  for  misfortunes  to  travelers  or  other  persons 
incidentally  to  their  operation,  by  virtue  of  an  imperial  statute  of 
June  7,  1871  (§  1),  regulating  carriers'  liabilities.  In  the  same 
way  the  post-office  is  liable  for  misfortunes  to  postal  matter  or  to 
travelers  in  mail  conveyances,  by  force  of  the  Imperial  Postal  Act 
of  October  28,  1871  (§§  (),  11).  And  finally,  innkeepers  are  liable 
for  the  baggage  of  travelers  by  force  of  the  Civil  Code  (§  701), 
which  has  followed  in  this  matter  the  Prussian  and  the  Saxon  law. 
In  all  these  cases  the  liability  is  for  every  "  internal  "  but  not 
always  (assuming,  of  course,  the  absence  of  legal  fault)  for  "ex- 
ternal "  accident;  i.e.  not  for  those  involving  "  vis  maior."  The 
conception  of  "  vis  maior  ",  however,  which  moreover  is  a  much 
debated  one,  includes  only  "  external  "  cases  of  misfortunes ;  that  is 
those  not  caused  by  the  ordinary  conduct  of  an  industry,  but  due 
to  an  outside  inevitable  and  irresistible  cause.  But  we  must  re- 
member in  this  connection  that  no  absolute  test  can  be  laid  down 
by  means  of  which  to  differentiate  cases  of  this  nature  from 
"  ordinary  "  accidents  for  which  liability  exists.^ 

What  is  more,  the  old  liability  for  faults  of  third  persons, 
—  notwithstanding  that  it  was  decidedly  subordinated  in  the 
common  law  and  regional  systems  to  the  much  milder  Roman 
rules  of  "  culpa  in  eligendo  ",  and  was -retained  in  general  form 
only  in  the  French  law,  —  is  still  applied  in  the  present  law,  at 
least  under  some  circumstances.  In  particular,  when  a  person 
undertakes  a  juristic  act  under  a  power  of  attorney  held  by 
virtue  of  statute  or  prior  juristic  act,  any  fault  of  which  he  is 
guilty  in  such  transaction  is  attributed  to  him  either  not  at  all 
or  not  alone,  but  to  his  principal.  And  the  same  is  true  when 
a  person,  by  virtue  of  a  power  of  attorney  held  by  him  under  a 
statute  or  juristic  act,  or  of  a  commission  ("  Auftrag ")  im- 
posed upon  him,  cooperates  with  the  person  at  fault  as  his 
agent  or  assistant  ("  Gehilfe  ") ;  and  equally  when  a  person,  by 
virtue  of  a  power  of  attorney  under  the  by-laws  of  a  corporation, 

1  See  Cosack,  "  Lehrbuch  des  Ilandflsrechts"  (7th  ed.,  1912),  45G  et  seq. 

532 


Chap.  IX]  GENERAL   PRINCIPLES  [§  78 

performs  acts  within  the  private  law  for  such  juristic   person 
(§27S).i 

As  respects  HabiHty  for  torts  in  non-contractual  relations,  the 
reader  is  referred  to  the  remarks  in  §  89,  below. 

Topic  5.    Assignments  of  Obligations  by  Obligee 
AND  Obligor 

§  78.  Assignments  of  Claims  by  the  Obligee.-  (I)  The  Older 
Law.  (1)  Transfer  by  juristic  ad.  —  In  the  older  law  the 
principle  prevailed  that  a  creditor  could  not  freely  assign  to 
third  persons  (i.e.  without  the  debtor's  consent)  contract  claims 
("Forderungen")  existing  under  an  obligational  contract;  a  prin- 
ciple which  equally  with  theimpossibility  of  personal  representation 
("Stellvertretung")  reflected  the  formalistic  character  of  the  law. 
The  effects  of  an  obligational  contract  were  determined  by  the  pre- 
cise and  literal  words  of  the  agreement,  and  the  obligor  promised 
performance  to  the  other  contracting  party  only,  and  not  to  any 
third  person  ;  consequently  a  third  person  could  have  had  no  legal 
right  of  action  against  the  obligor.  To  this  was  added  the  fact  that 
in  many  cases,  particularly  when  a  personal  liability  was  assumed, 
the  obligor  could  by  no  means  be  indifferent  whether  one  or 
another  creditor  was  the  other  contracting  party.  Thus  the  rule 
long  prevailed  that  a  contract  claim,  —  unless  it  was  associated 
with  possession  of  a  piece  of  land,  so  that  its  holder  could  change 
with  the  land,  —  was  not  assignable  without  the  obligor's  consent. 
This  rule  was  characteristic  of  the  older  Scandinavian  law,  and 
prevailed  in  Germany  as  late  as  the  time  of  the  Law  Books.^  In 
the  Netherlands  it  was  generally  abandoned  only  in  the  1400  s. 
The  French  customary  law  recognized  it  in  the  form  given  it,  for 
example,  by  the  Custom  of  Paris  (1510,  1580) :  "  simple  transport 
ne  saisit  point  ",  —  that  is,  until  the  conveyance  had  been  notified 
to  the  obligor  or  accepted  by  him  he  might  release  himself  by  pay- 
ment to  the  assignor.  According  to  the  English  common  law, 
until  1873  (statute  of  August  5),  the  king  alone  had  the  right,  in 
theory,  to  assign  contractual  claims  and  to  receive  them  as  assignee  ; 
whereas  in  other  cases  an  actual  transfer  could  be  effected  only 
indirectly,  through  a  power  of  attorney. 

1  Tosffc^-,  "Biirgerliehes  Reclit",  T  (4th  cd.),  254. 

^  Buck,  "Die  Ubertragbarkoit  der  Forderungen  im  deutsehen  mit- 
telalterliehen  Recht",  No.  113  (1912)  of  Gierke's  "Untersuehungen." 
In  my  opinion  the  attack  made  in  this  essay  upon  the  prevailing  theory 
is  not  convincing. 

3  "Kleines  Kaiserrecht",  II,  38. 

533 


§  78]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

As  was  natural,  witli  the  increasing  development  of  trade 
means  were  sought  for  elYecting  directly  what  the  strict  ])rinciple 
in  question  expressly  forbade.  And  the  power  of  attorney  proved 
available  for  the  purpose :  one  could  convey  to  a  third  party  the 
right  to  enforce  the  contract  claim  at  law,  at  the  same  time,  for 
greater  security,  frequently  exj^ressly  renouncing  one's  own  power 
to  enforce  it.  The  third  person  thus  acquired  a  position  compa- 
rable to  that  of  the  Roman  "  procurator  in  rem  suam."  But  aside 
from  the  fact  that  this  means  was  very  imperfect,  —  since  the 
right  of  action  always  existed  in  favor  of  the  attorney  only,  not  his 
heir,  —  it  presupposed  in  all  cases  the  possibility  of  representation 
by  attorney  in  litigation.  The  impossibility  of  this,  however,  was 
a  legal  principle  so  deeply  rooted  in  Germanic  law  "  that  it  sur- 
vived in  some  regions  of  Germanic  law  the  whole  Middle  Ages."  ^ 
Accordingly,  where  the  grant  of  such  power  was  either  never  or  not 
yet  permitted,  the  only  feasible  (at  first  the  only  possible)  way 
of  attaining  the  same  end  was  for  the  debtor  originally  to  promise 
performance  either  to  the  creditor  or  to  a  third  person ;  and  the 
wide  and  early  prevalence  in  the  Middle  Ages  of  such  promises  of 
performance  to  third  persons,  and  their  development  in  clauses  of 
order  and  bearer  commercial  paper,  is  explainable  precisely  by  the 
inhibition  of  assignments  of  contract  claims,  and  of  powers  of 
attorney  (infra,  §  88). 

It  was  only  at  the  end  of  the  Middle  Ages,  from  about  the  1400  s 
onward,  that  the  principle  of  the  assignability  of  choses  in  action 
was  recognized  in  a  few  legal  systems,  notably  in  town-laws 
(Magdeburg,  Breslau),  of  Germany  ;  empowerment  in  the  presence 
and  registration  in  the  records  of  the  court  being  generally  required 
in  such  cases. 

(2)  Statutory  transfers.  —  In  a  few  cases  it  was  possible  already 
in  the  Middle  Ages  to  speak  of  a  statutory  transfer  of  contract 
claims.  Such  a  transfer  occurred,  for  example,  when  a  house- 
owner  was  permitted  to  distrain  for  unpaid  rent  upon  chattels 
made  by  an  artisan  who  was  his  tenant,  and  to  collect  from  persons 
who  had  ordered  them  any  sums  still  owing  for  the  labor  (supra, 
p.  442)  ;  or  when  the  creditor  of  a  city  was -secured  by  its  tax  claims 
against  the  citizens  (supra,  p.  149).  Whenever,  in  these  and  in 
similar  cases,  a  creditor  (A)  was  permitted  to  proceed  against  the 
goods  of  a  debtor  (C)  of  his  own  debtor  (B),  and  in  a  proper  case 
distrain  upon  them,  —  that  is  to  the  amount  of  his  credit,  —  this 

'  Brunner,  "ForschuriKen",  599.  Cf.  his  essay,  "Das  franzosische 
Inhabcrpapicr  dcs  Mittolaltors"  (1879),  13  ct  scq. 

534 


Chap.  IX]  GENERAL   PRINCIPLES  [§  78 

actually  treated  the  claim  of  his  own  debtor  (B)  against  the  latter's 
debtor  (C)  as  transferred  to  the  former's  creditor,  the  plaintiff 
(A). 

(II)  The  Modern  Development.  —  With  the  Reception  general 
supremacy  was  attained  by  the  rule,  —  which  was  inconsistent 
with  the  old  Germanic  law,  —  that  contract  claims  might  be  as- 
signed from  the  creditor  to  a  third  person  even  without  the  debtor's 
assent.  This  rule  was  adopted  by  all  the  earlier  modern  codes, 
and  has  been  also  adopted  by  the  present  Ci\il  Code  (§  398). 
However,  though  the  possibility  of  assignment  has  been  recog- 
nized, the  theory  of  the  Roman  law  regarding  its  essential  char- 
acter has  not  been  accepted.  For  in  contrast  to  the  Roman  view, 
according  to  which  the  obligee  was  only  a  "  procurator  in  rem 
suam  ",  the  assignor  remaining  the  obligee,  the  rule  was  generally 
maintained  in  Germany  that  the  identity  of  the  claim  was  un- 
affected by  transfer.^  This  view  was  adopted  in  all  modern  legis- 
lation, including  the  present  Civil  Code  (§  398),  which  permits  a 
transfer  of  the  claim  by  a  nude  {"  abstrakt  ")  contract  of  assign- 
ment. As  respects  the  form  of  the  transfer,  no  requirements  were 
laid  down,  generally  speaking,  in  the  earlier  law ;  the  Prussian 
Allgemeines  Landrecht  required  WTiting.  The  obligor  was  not 
required  to  be  a  party,  but  in  order  that  the  contract  should  have 
full  effect  against  him  notice  to  him  was  required,  as  in  the  Roman 
law.  The  effect  of  such  notice  was  regulated  by  precise  rules, 
such  as  the  present  Civil  Code  also  contains  (§§  407  et  seq.). 

From  the  earliest  times  there  were  some  contract  claims  that 
were  non-transferable.  Among  these  belonged,  notably,  those 
that  were  in  a  high  degree  personal,  those  which  were  not  subject 
to  distraint,  and  those  that  were  declared  non-assignable  by  agree- 
ment.    All  this  has  also  been  recognized  by  the  Civil  Code. 

Where  transfers  of  claims  were  permitted  in  the  later  IMiddle 
Ages,  Jewish  creditors  were  frequently  forbidden  to  convey 
claims  against  a  Christian  to  another  Christian,  in  order  to  pre- 
vent a  worsening  of  the  debtor's  position ;  and  similarly  the 
Roman  Lex  Anastasiana,  which  served  in  principle  a  like  purpose, 
was  adopted  in  many  ])laces,  and  even  further  extended.  But  it 
proved  impossible  to  maintain  this  rule.  It  obtained  no  footing 
whatever  in  mercantile  transactions.  INIany  of  the  modern  codes, 
for  example  the  Prussian  "  Allgemeines  Landrecht  "  and  the  Aus- 
trian Code,  totally  abolished  it.  It  was  not  done  away  with 
throughout  Germany  until  the  General  Commercial  Code  (Art. 
'  Cosack,  "Biirgerliehes  Reeht",  I  (4th  ed.),  389. 
535 


§  78]  THE    LAW    OF    OBLIGATIONS  [BoOK   III 

299)  was  adopted.     On  the  other  hand,  the  present  Civil  Code 
permits  its  use,  since  it  contains  no  similar  prohibition. 

The  rule  by  which  certain  choses  in  action  pass  directly  to 
another  creditor  by  force  of  statutory  provision  has  found  far 
wider  dissemination  in  modern  times  than  in  the  medieval  period. 
The  Prussian  "  Allgemeines  Landrecht  "  provided  (1, 16,  §  46)  that 
a  person  paying  another's  debt  should  ordinarily  be  subrogated, 
without  any  express  assignment,  to  the  rights  of  the  creditor  so 
paid  against  the  debtor;  and  similarly  under  the  present  Civil 
Code  (§  268,  3)  the  rule  holds  that  a  third  person  who  has,  of  his 
own  motion,  satisfied  another  person's  creditor,  —  whether  can- 
celing it  by  performance,  or  by  payment  in  place  of  performance, 
or  by  depositing  security,  or  by  a  mutual  accounting,  —  acquires 
by  force  of  law  the  claim  of  the  creditor  so  satisfied.  But  the 
claim  may  not  be  enforced  to  the  detriment  of  the  original  creditor. 
Special  cases  in  which  this  principle  is  applied  exist  in  insurance  law 
and  in  commercial  law  (IIBG,  §§  25,  28,  435,  804). 

§  79.  Assignment  of  Obligations  by  Obligor.  (I)  The  Older 
Law.  —  In  view  of  the  original  non-assignability  of  claims,  legal 
transactions  for  the  purchase  and  assumption  of  the  obligations 
owed  ("  Schulden  ")  must  equally  have  been  unknown  to  the 
German  law,  as  they  certainly  were,  for  example,  to  the  Scandina- 
vian. For  the  debts  were  associated  with  the  person  of  him  who 
had  assumed  them,  and  could  not  be  transferred  inter  vivos  to 
another  person.  Similarly,  personal  and  property  liabilities,  such  as 
the  liability  assumed  under  a  contract  of  suretyship  (supra,  pp. 
480  et  seq.),  bound  solely  the  creator  of  the  liability.  On  the  other 
hand,  even  under  old  Germanic  law  a  change  in  the  possession  of  a 
thing  involved  a  change  of  the  person  obligated  in  those  cases 
where  the  purpose  of  the  obligation  was  a  transfer  of  such  object ;  ^ 
and  in  the  Middle  Ages  the  same  thing  was  true  of  the  exceedingly 
numerous  land-charges  required  to  be  rendered  by  the  temporary 
holder  of  the  seisin.  Moreover,  a  change  in  the  j)erson  of  the 
debtor  also  took  place  when  an  entire  estate  passed  by  inheritance 
("  Vererbung  ")  to  a  new  possessor,  which  might  happen  not  only 
"  mortis  causa  "  but  also  "  inter  vivos  "  ;  notably,  when  one  person 
transferred  his  entire  estate  to  another  in  return  for  lifelong  main- 
tenance and  the  assumption  of  all  the  transferror's  liabilities 
("  Vitalizienvertrag  "),  or  when  a  peasant  surrendered  his  holding 
to  his  next  heir  and  the  latter  promised  to  pay  the  debts.  When- 
ever a  new  debtor  took  the  place  of  the  old,  as  a  result  either  of 
'  V.  Amira,  "Reeht",  134. 
536 


Chap.  IX]  GENERAL   PRINCIPLES  [§  80 

such  contracts  involving  the  entire  estate,  or,  —  as  later  became 
possible  with  the  increasing  use  of  money,  —  of  special  agreements 
between  the  two  directed  to  the  transfer  of  particular  debts,  the 
old  debt  passed  to  the  new  debtor  unchanged  in  nature. 

(II)  Modern  Development.  — This  rule  was  maintained  in 
Germany  even  in  the  modern  period.  The  Roman  rule,  according 
to  which  a  debt  could  be  assumed  only  by  creating  a  new  debt 
that  was  assumed  by  the  new  debtor,  and  which  in  content  was 
identical  with  the  old,  found  no  acceptance  in  Germany.  Moreover, 
contracts  for  the  assumption  of  debts  came  to  be  generally  rec- 
ognized and  commonly  employed,  in  the  form  both  of  a  contract 
between  the  new  debtor  and  the  creditor  and  of  a  contract  between 
the  old  and  the  new  debtors.  In  the  latter  case,  to  be  sure,  it  was 
not  ipso  facto  effective  against  the  creditor.  Exhaustive  rules 
concerning  this,  as  well  as  the  question  when  the  old  debtor  was 
finally  eliminated  from  the  relation,  were  adopted  by  the  common 
law  and  the  regional  systems ;  to  these  the  rules  of  the  present 
Civil  Code  essentially  conform.  In  addition  to  such  assignments, 
the  transfer  of  debts  to  the  acquirer  of  an  entire  estate,  as  a  part 
thereof,  also  remained  of  great  practical  importance  in  the  modern 
law;  both  in  "maintenance"  contracts  ("  Vitalizienvertrage  ") 
and  in  the  taking  over  of  peasant  estates  by  an  expectant  heir, 
which  were  already  represented  in  the  Middle  Ages,  and,  especially, 
in  the  commercial  law  (HGB,  §§  25,  27,  30).  The  acquisition  of 
the  estate  now  implies  such  a  transfer  by  positive  provision  of  the 
Civil  Code,  but  does  not  affect  the  continuing  liability  of  the  first 
debtor  (§  419) ;  and  though  the  liability  imposed  upon  the  party 
assuming  the  debt  can  neither  be  avoided  nor  limited,  it  is  limited 
to  the  value  of  the  property  taken  over.  A  corresponding  pro- 
vision has  been  adopted  in  the  new  Swiss  Code  of  Obligation 
Law  (§  181) ;  only,  here,  the  continuing  liability  of  the  first 
debtor  is  limited  to  two  years. 

Topic  6.    Cases  of  Several  Debtors  and  Creditors 

§  80.  Plurality  of  Creditors.  —  Several  persons  may  be  inter- 
ested on  either  the  active  or  on  the  passive  side  of  an  obligation. 
At  the  same  time  the  relations  inter  sese  of  such  creditors  and 
debtors,  and  their  shares  in  the  claim  or  the  obligation,  may  assume 
various  forms.  These  correspond  for  the  most  part  to  the  different 
forms  of  control  which  several  interested  persons  can  exercise 
over  one  thing  (supra,  pp.  234  et  seq.),  and  they  are  consequences, 

537 


§  80]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

equally  witli  tlicso,  of  the  principles  of  the  law  of  persons  respect- 
ing coinniunitics  (.s-upm,  pj).  14G  d  scq.),  wherever  creditors  or 
debtors  are  united  in  one  community. 

(I)  Severable  Credits,  —  Claims  severable  pro  rata  ("  Teilglaubi- 
gerscliaft  ").  —  In  this  case  an  act  of  performance  is  due  to  several 
creditors,  and  each  creditor  is  entitled  to  receive,  and  can  bring 
action  for,  only  a  quotal  part  thereof.  Since  ancient  times  this 
has  been  the  rule  adopted  by  the  German  law,  in  the  absence  of 
specific  provision,  in  the  case  of  partible  obligations,  and  conse- 
quently in  the  case  of  money  debts  in  particular,  whether  arising 
from  contract  or,  like  the  wergilds  and  bots  of  near  kindred,  from 
delicts.  To  be  sure,  this  rule,  which  passed  over  into  modern 
codes,  including  the  present  Civil  Code  (§  420),  has  been  much 
impaired  by  very  numerous  exceptions.  This  is  true  of  the  present 
law,  in  which  the  exceptions  are  more  important  than  the  rule. 
Otherwise  this  relation  is  a  simple  one,  and  has  always  been 
treated  as  one  in  which  the  partial  claims  are,  aside  from  certain 
common  effects,  completely  independent  of  each  other,  being 
simply  shares  in  the  debt,  which  shares,  in  the  absence  of  special 
provisions,  are  treated  as  equal. 

(II)  Inseverable  Co-credits  ("  ungeteilte  Mitberechtigungen  "). 
—  More  complicated  were  the  relations,  always  richly  developed 
in  Germanic  law,  where  one  and  the  same  claim,  instead  of  l)eing 
divided  among  several  creditors,  belonged  to  them  as  a  whole. 
This  may  appear  under  three  forms : 

(1)  Co-credits  held  in  solidiim  {"  Gesamtgliiubigerschaft  ").  — ■ 
This  corresponds  to  the  community  of  full  co-rights  {supra, 
p.  2o9).  The  relation  was  imported  into  Germany  with  the 
Reception,  but  hardly  possessed  any  noteworthy  importance 
in  the  older  German  law.  It  is  regulated  to-day  in  the  pres- 
ent Civil  Code  much  as  it  was  in  the  Roman  law  (§§  428-430). 
Here,  where  the  common  law  theory  spoke  of  "  active  correal  ob- 
ligations ",  each  creditor  was  entitled  to  demand  full  performance 
without  regard  to  his  co-creditors,  and  a  payment  to  one  creditor 
satisfied  the  entire  debt  as  against  all  the  others.  There  was  here 
involved,  therefore,  a  right  of  each  co-creditor  which  was  wholly 
independent;  although,  unlike  the  case  of  several  creditors  of  a 
common  debtor,  it  was  dependent  in  a  high  degree  upon  the  like 
rights  of  the  other  joint  creditors,  inasmuch  as  it  was  extinguished 
if  one  of  those  was  satisfied.  On  the  whole,  this  relationship  is 
very  rare.  In  statutory  form  also,  it  occurs  only  in  a  few  cases 
under  the  present  Civil  Code. 

538 


Chap.  IX]  GENERAL   PRINCIPLES  [§  80 

(2)  Co-credits  for  undivided  shares  {"  Mitglaubigerschaft  nach 
Bruchteilen").  —  This  corresponded  to  co-ownership  in  undivided 
shares  (sujjra,  p.  238)  and  to  the  communities  in  undivided 
shares  of  the  law  of  persons  (supra,  p.  152).  This  relation  applied, 
particularly,  to  all  claims  to  an  impartible  performance,  and  ac- 
cording to  the  present  Civil  Code  (§  432)  it  is  the  rule  assumed,  in 
such  cases,  in  the  absence  of  specific  provision  to  the  contrary. 
Each  co-creditor  is  here  entitled  to  enforce  the  entire  performance, 
"  but  without  prejudice  to  the  similar  right  of  the  other  creditors."  ^ 
That  is,  above  all,  he  cannot  demand  that  the  debtor  shall  perform 
to  him  alone,  but  only  that  he  shall  pa}'  to  all  the  co-creditors 
together,  since  the  debtor  is  entitled  to  make  such  performance 
only  to  all. 

(3)  Co-credits  held  in  collective  hand. — This  corresponds  to  owner- 
ship in  collective  hand  (supra,  pp.  234  et  seq.)  and  to  communi- 
ties of  collective  hand  (supra,  p.  150).  The  older  German  law 
ordinarily  applied  the  principles  of  collective  hand  to  claims  held 
by  a  number  of  creditors  (true,  the  medieval  sources  contain  only 
scanty  references  to  the  subject).  Where  the  principle  of  collec- 
tive hand  prevails  the  credit  belongs  to  all  the  creditors,  and 
is  therefore  undivided  and  undivisible.^  None  of  the  creditors  may 
enforce  the  entire  claim  alone  in  his  own  name  nor  any  part  of  it, 
since  here  the  debt  is  simple,  and  not  divisible  into  independent 
parts.  Only  all  the  creditors  together,  acting  in  collective  hand, 
can  claim  performance.  To  an  action  by  but  one  of  them,  for 
himself,  the  debtor  would  not  be  bound  to  answer;  although 
according  to  medieval  legal  systems  it  was  quite  possible  to  appoint 
one  of  the  creditors  attorney  for  all,  exactly  as  when  one  rent- 
aler  paid  for  himself  and  other  tenants  of  a  severed  rental 
holding  ("  Einzinsereiverhaltnis ") ;  and  this  might  even  be 
done  by  lot.  In  the  same  way  the  debt  cannot  be  partially 
satisfied  by  payment  of  a  quota  to  one  creditor,  as  such,  nor 
wholly  by  payment  of  the  whole  to  one  creditor.  It  is  satisfied 
only  by  full  performance  of  the  entire  obligation  to  all  the 
obligees  jointly. 

This  form  of  community  credit  naturally  resulted  in  all  cases 
where  the  creditors  stood  in  a  personal  relation  of  collective  hand, 
and  in  such  cases  it  was  preserved  even  after  the  Reception. 
Similarly  according  to  the  present  Civil  Code  it  exists  by  force  of 
law  "  in  the  case  of  all  claims  acquired  against  third  persons  by 

1  Cosack,  "BiirKerliohes  Reelit",  I  (3d  ed.),  391. 

2  V.  Amira,  "Obligationeiirecht",  II,  10-i. 

539 


§  80]  THE   LAW    OF    OBLIGATIONS  [BoOK   III 

members  of  a  contractual  partnership  "  ^  (§§  709,  718) ;  and 
further  in  the  marital  community  of  goods,  after  its  dissolution  and 
pending  distribution  (§  1472).  Moreover,  it  can  always  be 
adopted  by  the  parties'  agreement. 

§81.  Plurality  of  Debtors.  —  All  those  cases  where  there  are 
several  obligors  and  only  one  obligation  ("  Schuld  ")  are  explain- 
able, from  the  standpoint  of  Germanic  law,  by  the  distinction  be- 
tween legal  duty,  or  obligation  ("  Schuld  "),  and  liability  ("  Haft- 
ung  ",  supra,  pp.  463  et  seq.).  So  many  obligors,  so  many  lia- 
bilities ;  but  these  liabilities  are  for  one  and  the  same  obligation. 
For  the  rest,  there  are  here  exactly  the  same  possibilities  as  in  the 
case  of  a  plurality  of  creditors. 

(I)  Several  Obligations  ("  Teilverpflichtung  ").  —  ^^^len  several 
persons  are  liable  for  the  same  obligation  ("  Schuld  "),  but  the 
obligation  is  divisible,  the  liability  can  also  be  apportioned  among 
them.  No  one  of  them  may  then  be  held  for  the  entire  obligation 
but  each  is  responsible  for  a  certain  share  thereof,  —  known  in  the 
sources  of  the  time  of  the  Law-Books  as  "  anzahl  "  ("  number  ") ; 
and  if  he  satisfies  that  he  thereby  drops .  out  of  the  group  of  those 
liable.^  Such  several  obligations  are  therefore,  in  respect  of  their 
legal  existence,  wholly  independent,  and  do  not  substantially 
affect  one  another.  In  case  of  apportionable  performances  it  was 
assumed  in  the  jMiddle  Ages,  in  default  of  specific  provisions,' 
that  this  was  the  kind  of  obligation  intended  ;  an  agreement  to  the 
same  effect  was  known  as  "  schlicht  geloben."  ^  In  modern  times 
the  principle  was  preserved  in  some  codes,  —  for  example,  in  the 
Austrian  and  the  Saxon  codes,  the  Code  Civil,  and  the  Swiss  Code 
of  Obligation  Law  (§  148) ;  but  like  the  corresponding  principle 
of  several  claims  it  was  subject  to  numerous  exceptions.  Thus 
the  Civil  Code  provides  that  when  several  persons  are  obligated 
to  an  apportionable  performance,  at  least  when  so  obligated  by 
force  of  law,  each  of  them  shall,  in  the  absence  of  express  provision, 
be  obligated  only  to  a  partial  performance,  namely  an  equal  i)er- 
formance  (§  420).  But  in  very  many  cases  such  division  is  ex- 
cluded, —  for  example  in  the  liability  of  co-sureties,  of  several 
obligors  of  an  active  land-charge  ("  Reallast  "),  in  torts,  and  par- 
ticularly in  the  law  of  family  relations  and  inheritance. 

(II)  Inseverable  Co-obligations  ("  ungeteilte^NIitverpflichtung  ")• 

'  Cosack,  op.  qU.,  .393. 

^  V.  Amira,  "  Ohlipationonroclit",  I,  171,  H,  193. 

'  Heuslcr,  "  liistitutioiicn",  II,  2.")S. 

*  Cf.  the  variant  roadinss  of  tjie  Ssp.,  Ill,  9,  §  2. 

540 


Chap.  IX]  GENERAL   PRINCIPLES  [§  81 

—  If  several  persons  are  liable  for  the  same  obligation  the  liability 
for  the  whole  may  be  imposed  upon  each.  Here  again,  as  in 
the  case  of  several  obligations,  there  exist  as  many  liabilities  as 
there  are  persons  liable,  and  all  these  liabilities  refer  to  one  and 
the  same  obligation.  But  in  this  case  each  of  the  persons  liable 
can  be  charged  with  the  entire  obligation.  On  the  other  hand, 
an  obligor  who  satisfies  the  entire  obligation  in  satisfaction  of  his 
own  liability  releases  not  only  himself  but  also  all  co-obligors 
from  liability.' 

Such  an  undivided  co-obligation  may  appear  in  two  forms :  the 
individual  is  either  liable  for  the  whole  independently  of  the  other 
co-obligors  (severally),  or  only  jointly  with  these. 

(1)  We  may  call  a  collective  ("  Gesamt  ";  loosely  =  'joint  and 
several ')  obligation  -  that  form  in  which  each  co-debtor  is  bound  to 
perform  the  entire  obligation,  but  subject  to  this,  that  all  the 
debtors  shall  be  bound  to  satisfy  the  obligation  only  once.  The 
creditor  may  select  from  among  the  co-obligors  any  one  at  his 
pleasure  and  compel  him  to  perform,  or  in  case  of  non-performance 
hold  him  liable  therefor.^ 

This  form  of  co-obligation  was  common  in  the  older  law:  it 
sometimes  occurred  in  obligations  for  torts,  sometimes  in  obliga- 
tions under  juristic  act,  as  for  example  in  the  liability  of  a  surety 
and  the  surety-giver.  If  the  one  against  whom  action  was  brought 
satisfied  the  obligation,  it  was  left  to  him  to  effect  an  arrangement 
with  his  co-obligors.  In  the  later  Middle  Ages,  to  be  sure,  it  was 
frequently  provided,  in  contradiction  of  the  fundamental  idea  of 
the  institute,  that  the  creditor  might  hold  each  of  the  joint  and 
several  debtors  liable  for  a  quota  only ;  but  in  case  the  quota  due 
from  one  or  several  co-obligors  was  not  obtainable,  they  all  re- 
mained liable  pending  complete  satisfaction  of  the  obligation,  so 
that  the  others  were  obliged  to  assume  the  quotas  of  those  not 
paying.  This  view  corresponded  to  the  "  exceptio  divisionis  "  of 
the  later  Roman  law,  which  was  adopted  in  many  statutes  of 
the  period  of  the  Reception.  But  with  this  exception  the  atti- 
tude adopted  towards  the  Roman  rules  of  multiple  obligation  was 
rather  unreceptive,  mainly  because  the  concept  therein  developed 
of  an  opposition  between  solidary  ("  Solidar  ")  and  correal  ("  Kor- 
real-  ")  obligations  was  then,  and  remained,  a  much  debated  one. 
The  modern  codes,  on  the  other  hand,  in  regulating  collective 

1  V.  Amira,  "Oblisationenrecht",  I,  177. 

^  Cosack,  "Biirgorliches  Ilecht",  I  (6tli  ed.),  465. 

'  V.  Amira,  "Obligationenrecht." 

541 


§81]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

oblii^ations,  conformed  far  more  nearly  in  important  matters  to 
the  older  native  views.  They  recognized  the  creation  of  collective 
obligation  both  by  force  of  law,  and  by  virtne  of  the  parties'  will. 
In  the  latter  case  certain  formal  expressions  remained  customary; 
as  for  example  "  one  for  all  and  all  for  one  ",  "  all  and  sundry  ", 
"  solidarily  ",  etc.  Whereas  some  codes  have  established  a  pre- 
sum])tion  in  favor  of  several  liabilities  ("  Teilverpflichtung " ; 
above,  under  I),  the  Prussian  "  Landrecht  "  and  the  General  Com- 
mercial Code  (§  280)  prescribed  joint  and  several  obligation  in 
the  absence  of  specific  provisions.  Among  obligors  treated  as 
joint  and  several  debtors  by  force  of  law  were  persons  liable  in 
damages  for  some  legal  fault  (and  so,  for  example,  "  concubentes  " 
as  regarded  obligations  of  maintenance),  —  various  sureties,  vari- 
ous guardians,  and  various  signers  of  a  bill  of  exchange  (WO, 
§  81).  At  the  same  time  the  creditor  is  left  a  choice  "  whether 
he  ",  as  it  is  expressed  in  the  Austrian  Code  (§  891),  "  will  claim 
the  whole  from  all  or  from  some  of  the  co-debtors,  or  from  a  single 
one.  ...  If  he  is  satisfied  only  in  part  by  one  or  by  another  of 
the  co-debtors,  he  can  claim  the  balance  from  the  others." 

In  contrast  to  the  clouding  of  the  institute's  basic  idea  that  was 
introduced  in  the  Middle  Ages  when  a  joint  and  several  debtor 
was  made  primarily  liable  only  for  a  quota,  and  in  contrast  to  the 
"  beneficium  divisionis  "  consequently  recognized  in  the  common 
law,  the  older  Saxon  practice,  as  well  as  all  the  modern  codes  with 
the  sole  exception  of  the  Zurich  Code,  charged  each  debtor  with  the 
whole  in  accord  with  good  Germanic  law,  but  gave  the  debtor  who 
paid  the  whole  a  claim  for  indemnity  against  his  co-debtors  whom 
he  so  released,  without  any  assignment  to  him  of  the  creditor's 
claim. 

The  present  Civil  Code  has  conformed  in  essentials  to  these 
statutes;  particularly  to  the  Prussian  "  Allgemeines  Landrecht." 
Like  that  it  recognizes  a  presumption  of  joint  and  several  obliga- 
tion (§  427),  even  in  the  case  of  apportionable  obligations,  when  the 
obligation  is  created  by  contract ;  and  in  accord  with  the  pure 
Germanic  law  it  makes  each  of  the  joint  and  several  debtors 
liable  for  the  whole.  According  to  it,  also,  the  creditor  has  a  choice 
whether  he  will  go  against  a  single  debtor  for  the  whole  or  for  a  part, 
or  against  all  for  the  whole  or  for  shares.  These  ditt'erent  liabilities 
are  dependent  upon  one  another,  inasmuch  as  various  legal  facts 
exercise  their  effects  upon  all  collectively,  —  for  example  per- 
formance, accord  and  satisfaction,  judicial  or  public  deposit,  set- 
off and  counter  claim,  impossibility  of  performance,  failure  of  the 

542 


Chap.  IX]  GENERAL   PRINCIPLES  [§  81 

creditor  to  accept  performance ;  not,  on  the  other  hand,  ordinarily, 
demand  of  payment,  mere  delay  in  performance,  negative  prescrip- 
tion, etc.  In  their  relation  with  one  another  the  debtors  are 
obligated  for  equal  parts  (§  426) ;  they  therefore  constitute  in 
theory  a  legal  community,  and  this  imposes  upon  them  a  mutual 
duty  of  indemnity, 

(2)  Obligations  in  collective  hand  {"  zu  gesamter  Hand  "  ;  loosely 
=  '  joint  ').  —  Here  again  each  co-debtor  is  (theoretically)  bound 
fully  to  satisfy  the  performance  that  is  due ;  but  this  performance 
can  be  demanded  only  of  all  together.  The  obligee  cannot,  in 
this  case,  demand  of  any  one  of  the  co-obligors  at  his  pleasure 
that  he  alone  perform  or  be  liable  for  non-performance.  On  the 
contrary  he  must  bring  his  action  against  all  of  them  jointly ;  for 
though  they  are  liable  for  the  whole  they  are  liable  only  with  one 
another.  This  relation  was  common  in  the  older  German  law, 
along  with  the  widespread  prevalence  of  communities  of  collective 
hand.  Where  it  was  created  otherwise  than  by  force  of  law  it  was 
created  by  the  formality  peculiar  to  the  principle  of  collective  hand ; 
that  is,  by  common  act  in  concluding  the  contract  "  coniuncta 
manu."  Nevertheless  it  was  and  is  less  important  than  the  joint 
and  several  obligation.  Whereas  the  Prussian  "  Allgemeines  Land- 
recht  "  recognized  obligations  of  collective  hand  in  the  case  of  all 
unapportionable  obligations  created  otherwise  than  by  act  of  the 
parties,  the  present  Civil  Code  recognizes  them  only  where  the 
co-debtors  are  liable  with  a  definite  special  estate ;  that  is,  partic- 
ularly, in  the  case  of  partners  so  far  as  they  are  liable  with  the 
partnership  estate,  and  in  the  case  of  co-heirs  so  far  as  they  are 
liable  with  the  inheritance  and  this  is  still  undistributed  (§  2059).^ 

^  Cosack,  "  Biirgerliches  Recht." 


543 


82] 


THE    LAW    OF   OBLIGATIONS 


[Book  III 


Chapter  X 


SPECIAL  FORMS  OF  OBLIGATIONS 


Topic  1.  Obligations  ex  Contractu 

§  82.    Obligations  ex  Contractu  Gen- 
erally. 
§  83.    Contracts  of  Sale. 
I.    I^ohibitions. 
II.    Obligation     of     General 
Warranty       and       of 
Warranty  of  Title. 

III.  Defects    in    the    Thing 

Sold. 

IV.  Transfer  of  Risk. 
§  84.    Hire  and  Lease. 

I.    Hire     and     Lease     Dis- 
tinguished. 
II.    Chief    Consequences    of 
the     Real     Right     of 
Hirer  and  Lessee. 
III.    Agistment. 
§  85.    Contracts  for  Labor  and  for 
Services. 
I.    Contracts  for  Labor. 

(1)  The  medieval  law. 

(2)  The  development  in 

the  modern  period. 
II.    The    Contract    for    Ser- 
vices. 

(1)  Contracts  for  house- 

hold services. 

(2)  Other  contracts  for 

services. 
§  86.    Loans  at  Interest. 
§  87.    Wagering  and  Gambling. 
I.    Wagers. 
II.    Gaming. 
§  88.    Claims  based  upon  Commer- 
cial Paper. 

I.    Tlie  Conception  and  Va- 
rieties of  Commercial 
l*ai)er. 
II.    The  Historical  Develop- 
ment. 
(1)  "Carta"  and  "noti- 
tia." 


(2)  Special  clauses  of 
commercial  paper 
and  particularly 
of  order  and 
bearer  paper. 

(A)  Demand       and 

transfer 
clauses. 

(B)  Attorney 

clauses. 

(C)  Alternative 

bearer  clauses. 

(D)  Pure         bearer 

III.  Chief  Germanic  Ele- 
ments in  the  present 
Law  of  Commercial 
Paper. 

(1)  The  creation  of  the 

debtor's  duty  to 
perform. 

(2)  The    "legitimizing" 

(protective)  qual- 
ity of  commercial 
paper. 

Topic  2.  Obligations  based   upon 
Torts 

§  89.    Obligations  based  upon  Torts. 
I.    Tort       Obligations      in 
General. 

(1)  The  older  law. 

(2)  The  modern  law. 
11.   Liability     for     Damage 

done  by  Other  Per- 
sons, Animals,  and 
Things. 

(1)  Liability    for    other 

persons. 

(2)  Liability  for  animals. 

(3)  Damages    done    by 

things. 


Topic  L    Obligations  ex  Contractu 


§  82.  Obligations  ex  contractu,  generally.  —  The  development 
of  distinct  types  of  contract,  distinguished  by  legal  characteristics, 
is  always  the  result  solely  of  increased  trade  and  advanced  ju- 

544 


Chap.  X]  SPECIAL    FORMS    OF    OBLIGATIONS  [§  82 

ristic  technic.  In  the  development  of  the  medieval  law  one  can 
trace  the  gradually  appearing  differentiation  of  the  various  forms 
of  contract.  Like  the  law  of  things,  the  law  of  obligations  started 
with  a  single  legal  form,  which  it  at  first  adjusted  to  all  the  needs 
of  life.  This  oldest  contract  was  that  of  sale,  "  the  typical  con- 
tract of  Germanic  law."  ^  Hence  we  find  the  word  "  chouf  "  in 
the  old  High  German  glosses,  for  example,  employed  in  the  gen- 
eral sense  of  "  negotium  ",  "  merces  ",  "  business  transaction  " 
("  Geschaft  ") ;  and  the  Scandinavian  languages  designated  with 
the  words  "  kaupa  "  and  "  kaup  "  every  contract  "  that  can  be 
called  in  any  sense  a  trading  transaction  ('  Handelschaft  ')."  ^ 
A  sale  ("  Kauf ")  in  this  oldest  sense,  however,  was  nothing 
else  than  a  gift  ("  Gabe  ")  that  obligated  the  person  receiving  it 
to  some  counter  performance.  Consequently,  all  transactions 
that  could  in  any  way  arise  could  be  regarded  as  varieties  of  this 
all-inclusive  concept,  for  the  transactions  of  primitive  legal 
traffic,  —  which  could  be  concluded  only  as  non-credit  trans- 
actions (supra,  p.  459), — invariably  consisted  in  a  mutual  de- 
livery of  goods  for  goods  (barter)  or  of  goods  for  a  money  price 
(sale  in  the  narrow  sense).  And  this  was  not  affected  by  the 
fact  that  the  spot  transaction  could  be  replaced  by  a  real  con- 
tract, for  here  also  the  delivery  of  the  thing  created  the  obligation 
of  the  other  party.  This  delivery  was  a  "  gift  with  a  charge  " 
("  Gabe  mit  Auflage  ") ;  a  type  of  contract  whose  characteristics 
resembled  not  only  those  of  a  sale  on  credit  but  also  those  of  a 
loan  and  a  bailment  for  custody. 

The  gratuitous  gift  or  donation  ("Schenkung"),  also  fell  within 
this  category.  For  although  the  essential  characteristic  of 
the  donation  as  the  law  was  finally  developed  lay  in  the 
gratuitous  nature  of  the  payment  ("  Zuwendung  "),  this  char- 
acteristic was  originally  alien  to  Germanic  law.  Like  all  other 
primitive  legal  systems  it  recognized  solely  transactions  for 
value.  Every  performance  ("  Leistung "),  if  it  was  to  pro- 
duce legal  effects  and  enjoy  legal  protection,  required  a  counter 
performance.  Therefore  the  "  Schenkung "  also  required  a 
counter  gift.  This  principle,  however,  which  necessarily  fol- 
lowed from  the  exclusive  recognition  of  non-credit  contracts, 
was  felt  to  be  at  the  same  time  a  moral  obligation ;  since 
the  present  required  the  thanks  of  the  recipient,  the  latter,  it 
was  said,  should  repay  gift  with  gift.     The  legal  aspect  of  this 

^  Schroder,  "Lehrbuch",  64. 

2  V.  Amira,  "  Obligationenrecht ",  II,  287. 

545 


§  82]  THE   LAW   OF   OBLIGATIONS  [Book  III 

idea  was  developed  most  logically  by  the  Lombards.  Their  law 
required  for  the  legal  validity  of  the  donation  that  something 
pass  in  turn  from  the  donee  to  the  donor, — whicli,  however,, 
in  order  that  it  might  not  disappoint  the  good  will  expressed  in 
the  donation,  was  a  mere  nominal  gift,  a  so-called  "  launegild  '* 
("Lohngeld  ").'  It  was  only  the  "launegild  "  which  made  the 
donation  irrevocable ;  through  it  this  acquired  the  character  of 
a  spot  contract.^ 

To  be  sure,  already  in  the  Middle  Ages  the  various  transactions 
that  were  needed  in  commerce  were  developed  with  increasing 
distinctness  from  the  single,  originally  all-inclusive,  normal  type 
of  contract ;  a  distinction  between  the  purposes  of  trading  trans- 
actions being  followed  by  a  distinction  between  the  correspond- 
ing institutes  of  the  law.  Sale,  hire  ("  Miete  "),  lease  ("  Paeht  "), 
pledge,  and  other  contracts  were  thus  legally  differentiated  from 
one  another.  The  German  law,  however,  did  not  attain  to 
any  perfection  of  theory  in  its  law  of  contracts.  As  already 
mentioned  (supra,  p.  463),  that  was  first  realized  under  the  in- 
fluence of  the  Roman  law.  It  is  significant  that  the  legal 
sources  of  German  Switzerland,  where  the  influence  won  by 
Roman  law  was  very  much  weaker,  maintained  down  into  the 
1700  s  an  almost  absolute  silence  concerning  different  forms  of 
contract.^ 

In  view  of  these  facts  we  need  only  emphasize  in  the  following 
pages  a  few  matters  in  which  the  Germanic  law  either  attained 
a  noteworthy  independent  development,  or  preserved  old  rules  as 
part  of  the  modern  law  of  trade  that  has  been  developed  upon  the 
basis  of  the  Roman  law. 

§83.    Contracts     of     Sale.'' —  (I)    Prohibitions     ("  Verbote  "). 

—  The  fact,  above  mentioned,  that  every  sale  was  originally 
concluded  as  a  non-credit  transaction  explains  the  other  fact 
that  there  still  existed  in  the  Middle  Ages  such  a  preference 
for  spot  sales  that  sales  for  future  delivery,  —  also  known  as 
"  Vorkauf  "  ("forestalling"  a  sale  before  the  goods  are  available), 

—  although  common  in  practice,  were  repeatedly  forbidden  by 
statute.     This  was  still  the  case  in  the  1400  s  at  Ilansa  fairs,  and 

'  Lintprnnd,  73. 

'^  Vnl  de  Lirvre,  "Launegild  und  Wadia"  (1877),  and  "Revision  der 
Launonrildstheorie",  7J.  R.  G.,  TV  (1883),  15-54;  Pnppcnhcim,  "Laune- 
gild und  Garethinx",  no.  14  (1882)  of  Gierke's  "Untersuchungen. " 

•'  Iluhcr,  "Schw.  Privalrocht",  IV,  849. 

'^  Come,  "  Kauf  nach  liansoatisflicri  C^uellon"  (dissertation,  Bonn, 
1889);  Rahel,  "Die  Haftung  dcs  Vcrkilufcrs  wogen  Mangels  im  Rechte» 
Erster  Tail:   Geschichtlicho  Studien  iiber  den  Haftungserfolg"  (1902). 

546 


I 


Chap.  X]  SPECIAL   FORMS   OF   OBLIGATIONS  [§  83 

likewise  in  many  of  the  Hanseatic  systems  of  town  law  (Breslau, 
Liibeck,  Riga)  and  in  Swiss  legal  systems. 

Other  prohibitions  and  restrictions  originated  in  considerations 
of  a  lego-political  nature.  In  order  to  discourage  usurious  over- 
reaching (infra,  §  86),  the  sale  of  uncut  grain  was  frequently 
prohibited,  and  in  general  all  sales  whatever  in  which  measures 
were  resorted  to  by  which  the  just  relation  between  price  and 
goods  was  falsified  or  the  recognition  of  the  relation  made  impos- 
sible. In  order  to  suppress  middlemen,  and  to  insure  the  conclusion 
of  all  sales  under  the  eyes  of  public  authorities,  it  was  for- 
bidden to  sell  goods  that  had  not  yet  reached  their  final  ("  eigent- 
lichen  ")  market ;  particularly,  sales  outside  the  gates  of  the  city 
(likewise  known  as  "  Vorkauf  ",  forestalling),  and  the  like. 

(II)  Obligation  of  General  Warranty  and  of  Warranty  of  Title. 
—  Germanic  law  imposed  upon  the  seller  a  duty  of  warranty 
corresponding  to  the  old  Roman  "  auctoritas."  ^  That  is,  when 
a  third  person,  by  legal  action,  demanded  of  a  purchaser  the 
delivery  of  the  thing  purchased,  the  seller  was  bound,  upon  for- 
mal citation  by  the  impleaded  buyer,  to  appear  in  court,  give 
warranty,  take  the  place  of  the  buyer  as  defendant  in  the  action, 
and  by  a  favorable  prosecution  of  the  suit  preserve  the  seisin  of 
the  thing  to  his  buyer  (supra,  p.  411) ;  for,  as  it  is  expressed  in 
the  French  coutumes,  "  tous  venderes  doit  varandir."  To  be 
sure,  there  was  no  procedural  compulsion  thus  to  assume  the 
defense  ("  defensio  ",  "  Schirmung  ").  But  a  warrantor  who 
did  not  appear  was  regarded  as  a  thief,  and  was  obliged  to  pay 
to  the  complaining  third  party  the  bot  for  larceny  and  to  repay 
the  purchase  price  to  the  purchaser,  since  the  buyer  whose  war- 
rantor made  default  was  obliged  to  deliver  the  thing  to  the  third 
person.  In  the  same  way  the  seller  was  liable  in  damages  if  de- 
feated in  the  action  he  undertook  to  defend.  Although  this 
duty  of  warranty  existed  by  force  of  law  it  was  nevertheless 
customary,  when  a  contract  of  sale  was  concluded,  to  promise  it 
in  penalty  clauses  in  the  instrument ;  in  these  the  seller  not  only 
promised  for  himself  and  his  successors  in  title  not  to  disturb  in 
future  the  possession  of  the  vendee,  but  also  expressly  assumed 
the  duty  of  warranty  against  legal  attacks  by  third  parties. 

This  law  of  warranty,  which  was  closely  associated  with  the 
medieval  system  of  procedure  as  well  as  with  the  principles  of  seisin, 
was  maintained  in  essentially  undiminished  authority  so  long  as 

1  This  view  is  attacked  by  Herbert  Meyer  in  the  "Festschrift  fiir 
Gierke",  995  et  seq. 

547 


§  S3]  THE   LAW   OF  OBLIGATIONS  [Book  III 

the  body  of  the  Germanic  law  remained  intact.  As  late  as  the 
beginning  of  the  IGOO  s  it  was  possible  to  say  in  Austria  :  "  every 
sale  carries  warranty  and  protection  '  on  its  back  '  (*  auf  dem 
ruckhen  ')."  ^  Indeed,  the  old  system  of  warranty  remained  in 
force  in  many  places  after  the  Reception,  although  only  in  a 
weakened  form.  In  France  voucher  to  warranty  was  transformed 
into  a  "  guaranty-action  ",  by  which  the  naming  of  a  warrantor 
became  merely  a  defense  available  to  the  defendant  at  his  option ; 
it  was  at  his  disposal  in  case  he  did  not  wish  to  make  use  of  the 
right  of  independent  defense  that  was  now  permitted  to  him  in 
all  cases.^  In  Germany,  the  reception  of  the  alien  law  gradually 
sapped  of  vitality  the  traditional  native  principles.  In  conse- 
quence, acceptance  was  generally  accorded  to  a  theory  which, 
under  the  controlling  influence  of  the  Germanic  idea  of  voucher 
to  warranty,  had  developed  in  medieval  Italy  out  of  the  purely 
substantive  Uability  of  the  vendor  in  Roman  law  for  the  "  habere 
licere  "  a  procedural  duty  of  "  defence  "  or  warranty  ("  Defen- 
sionspflicht  ")  that  was  exercisable  through  a  "  litis  denuntiatio," 
and  also  an  action  to  compel  such  defense.  Native  and  alien 
ideas,  principles  of  substantive  and  procedural  law,  rules  of  posi- 
tive law  and  theories  of  natural  law,  were  combined  in  this  theory, 
which  created  in  the  law  an  exceeding  confusion  that  is  here 
and  there  reflected  in  the  great  modern  codes.  Clarification  was 
introduced  for  the  first  time  when  the  Historical  School  of  the 
1800  s  rediscovered  the  pure  Roman  law  and  its  liability  for 
"  habere  licere  ",  —  the  so-called  warranty  of  title  (warranty 
against  eviction,  "  Eviktionsklage  "),  —  and  taught  students 
that  under  the  Roman  law  the  vendor,  as  such,  was  obligated 
merely  to  perform  the  act  of  conveyance  and  was  not  responsible 
for  the  result  of  such  conveyance ;  and  that  consequently  he  must 
assume  a  supplementary  warranty  of  possession,  —  that  is,  of 
the  "  habere  licere."  The  Civil  Code,  finally,  has  done  away  with 
all  earlier  differences  and  doubts  by  esta])lishing  the  principle, 
which  is  substantively  in  agreement  with  the  early  Germanic 
law,  that  the  vendor  is  obligated  to  secure  to  the  vendee  an 
unimpeachable  ("  lastenfreie ")  title  to  the  thing  purchased 
(§§  433-434)  :  a  rule  that  was  imknown  to  the  Roman  law,  and 
which  could  not  have  been  laid  down  in  that  form  even  by  the 
medieval  law,  because  this  did  not  proceed  from  ownership  but 
from  seisin.     The  vendee  is  entitled  to-day  (as  he  was  earlier  under 

1  Rahel,  op.  cit.,  204. 

2  Wach,  "Handbuch  des  deutschen  Civilprozessrechts  ",  I  (1885),  657. 

548 


Chap.  X]  SPECIAL   FORMS   OF   OBLIGATIONS  [§  83 

the  Prussian  "  Landrecht  ")  not  only,  as  formerly,  to  an  action 
against  his  vendor  in  case  of  eviction  (disseisin),  but  whenever 
the  better  right  of  a  third  person  can  be  established.  A  notifi- 
cation of  a  claim  by  a  third  party  is  accordingly  no  longer  requi- 
site. On  the  other  hand,  in  all  those  cases  in  which  the  vendee, 
despite  the  defective  title  of  his  vendor,  acquires  ownership  with- 
out further  steps  through  the  rule  "  hand  warrant  hand  "  or  as 
a  result  of  the  public  faith  of  the  land  register  (supra,  pp.  223, 
438),  it  is  no  longer  necessary  to  sue  the  vendor. 

(Ill)  Defects  in  the  Thing  Sold.  —  Although  the  old  Ger- 
manic duty  of  warranty  already  imposed  upon  a  seller,  in  modern 
phraseology,  liability  for  defects  of  title  ("  Mangel  im  Recht  ", 
defects  "  in  law  "),  there  did  not  exist,  generally  speaking,  a  lia- 
bility for  physical  defects  in  the  thing  sold.  To  be  sure,  good 
faith  required  that  the  thing  sold  should  possess  the  qualities 
positively  agreed  upon,  and  should  be  without  any  considerable 
faults  ("  Fehler  ").  But  if  the  buyer  had  once  seen  and  accepted 
the  thing  he  could  not  thereafter  bring  an  action  for  defects  that 
became  apparent  later.  His  acceptance  was  regarded  as  an 
approval  which  deprived  him  of  the  right  of  later  objection 
("  Riige  ").  Hence  the  maxims,  "  he  who  does  not  open  his  eyes 
opens  his  purse  ",  "  he  who  buys  like  a  fool  must  pay  like  a  wise 
man."  It  was  only  when  the  seller  concealed  defects  with  intent 
to  deceive  ("  arglistig  "),  or  when  there  were  involved  certain  es- 
pecially serious  defects  (which  were  typically  defined  for  different 
sorts  of  goods),  or  defects  of  qualities  expressly  averred  to  be 
present,  that  the  seller  was  liable  for  these.  In  such  cases  the 
seller  might  within  a  certain  short  period  "  wandeln  "  the  trans- 
action, that  is  rescind  it,  and  then  demand  the  repayment  of 
the  purchase  price  upon  redelivery  of  the  goods.  In  case  of  con- 
cealment with  intent  to  deceive,  the  purchaser  also  had  a  claim 
for  damages.  This  treatment  of  the  seller,  in  general  mild,  was 
made  decidedly  harsher  by  the  adoption  of  the  Roman  rules. 
For  from  that  time  onward  a  liability  was  imposed  upon  the 
seller,  in  accordance  with  tlic  Roman  law,  for  all  so-called  "  latent  " 
("  heimlich  ",  secret)  defects,  —  that  is,  defects  not  perceptible 
at  the  time  the  sale  was  concluded  ;  and  this  was  not  excluded 
even  by  an  acceptance  of  the  goods  without  reservation  of  rights. 
More  than  this,  the  buyer  was  accorded  at  his  will  the  so-called 
sedilian  actions  of  Roman  law,  —  namely  the  "  actio  rcdhi- 
bitoria ",  which  corresponded  to  the  action  for  rescission 
("  Wandelungsklage  ")  of  Germanic  law,  and  the  "  actio   quanti 

549 


§  83]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

minoris  "  ("  Mindcrunfi;sklage  ",  action  for  abatement  of  price),  — 
and  in  addition  to  these,  in  case  of  special  warranty  ("  Zusagen  ") 
or  culpable  conduct  on  the  part  of  the  seller,  an  action  upon 
the  contract  for  damages  ("  actio  emti  ").  The  system  of  actions 
which  was  thus  established  by  the  common  law  passed  over  into 
the  modern  codes.  At  the  same  time  after-effects  of  the  old 
native  law  continued,  —  so,  especially,  in  many  legal  systems  the 
rule  that  the  buyer  forfeited  his  right  by  an  acceptance  without 
reservation  thereof.  This  continued  to  be  recognized  in  the 
Hamburg  law  in  its  original  strictness,  and  in  case  of  all  (even 
latent)  defects.  The  Prussian  "  Landrecht  "  adopted  it,  at  least 
in  the  weakened  form  that  the  buyer  must  immediately  object  to 
such  defects  as  he  noticed  at  the  time  of  acceptance,  or  ought  to 
have  noticed.  The  General  Commercial  Code  also  adopted  the 
view  of  the  Germanic  law,  requiring  in  sales  between  absent 
parties  that  the  buyer,  immediately  after  the  delivery  of  the  goods 
sent  to  him,  should  examine  them  with  due  care,  and  must  then 
without  delay  give  notice  to  the  seller  of  defects  known  to  or  know- 
able  by  him  ;  defects  which  became  perceptible  only  later  must  be 
reported  immediately  upon  their  discovery  (§  347).  The  present 
Civil  Code  has  rejected,  in  favor  of  the  opposite  Roman  rule,  the 
view  of  Germanic  law  that  the  buyer  lost  his  rights,  in  case  of 
possible  defects  in  the  thing,  by  an  acceptance  without  reserva- 
tion ;  it  is  only  as  to  those  defects  which  the  buyer  has  de- 
monstrably known  at  the  time  of  acceptance  that  it  requires  a 
special  reservation  of  his  rights  (§  464),  But  the  new  Com- 
mercial Code  has  in  turn  preserved  the  duty  of  examination 
and  objection  in  all  sales  between  merchants ;  in  other  words,  it 
has  preserved  the  stricter  treatment  of  the  buyer  under  Germanic 
law  (§  377). 

Finally,  in  the  case  of  cattle  transactions,  the  rule  of  the  old 
law  was  preserved  throughout  a  great  part  of  Germany,  and  most 
especially  in  the  entire  South  and  in  Saxony ;  the  seller  being 
made  liable  only  for  certain  particularly  important  defects  known 
as  "  chief "  ("  Ilaupt- ")  defects,  which  are  exactly  defined 
by  statute.  There  was  not  at  all  involved  in  this,  originally,  a 
preference  of  those  selling  cattle  as  compared  with  other 
vendors ;  for  under  the  old  law,  as  already  stated,  every  seller 
had  enjoyed  the  same  favorable  treatment.  After  the  reception 
of  the  stricter  Roman  rules,  however,  which  made  the  seller  liable 
for  all  latent  rlefects,  the  preservation  of  the  old  rule  in  such 
cases  actually  became  a  privilege  of  those  who  sold  cattle.     The 

550 


Chap.  X]  SPECIAL   FORMS   OF   OBLIGATIONS  [§  83 

*'  ludicrous  Mosaic  of  legal  diversities  "  ^  presented  by  the  there- 
tofore existing  law  of  the  cattle  trade  was  done  away  with  by  the 
detailed  provisions  of  the  present  Civil  Code  (§§  482-492).  It  has 
adopted  in  this  matter  the  traditional  native  rules.  Liability  exists 
only  for  certain  "  chief  "  defects  which  are  listed  in  a  catalogue 
prepared  by  imperial  order;  and  this  only  when  they  appear 
and  are  duly  objected  to  within  a  definite  and  unusually  short 
period  (3,  10,  14,  or  28  days).  Moreover,  the  buyer  has  no 
action  under  the  Code  for  abatement,  but  ordinarily  only  a  right 
of  rescission,  —  and  in  the  case  of  animals  purchased  for  breeding 
the  right  to  a  later  delivery  of  an  undefective  in  place  of  the 
defective  animal.  In  the  new  Swiss  Code  of  Obligation  Law  the 
rule  has  been  adopted,  in  the  case  of  a  sale  of  cattle  (§  202),  that 
if  the  written  warranty  contains  no  provision  as  to  time,  and 
there  is  no  question  of  a  warranty  of  gravidity,  the  seller  is  liable 
to  the  buyer  only  when  the  defect  is  discovered  and  notice  given 
thereof  within  nine  days,  or  when  an  examination  of  the  animal 
by  experts  is  demanded  of  the  authorities  within  a  like  period. 

(IV)  Transfer  of  Risk.  —  The  treatment  of  the  question  from 
what  moment  an  accidental  destruction  of  or  damage  to  the 
thing  sold  shall  be  borne  by  the  buyer,  and  no  longer  by  the 
seller,  was  determined  in  the  old  Germanic  law  by  the  rule  that 
the  risk,  like  the  usufruct,  should  pass  to  the  buyer  with  the 
transfer  of  the  seisin.  Consequently,  the  transfer  of  risk  took 
place  in  the  case  of  chattels  at  the  moment  of  acquiring  the 
corporeal  seisin,  and  in  the  case  of  lands  at  the  moment  of  inves- 
titure, —  originally  corporeal  investiture,  but  later,  when  sym- 
bolical investiture  was  introduced,  equally  at  the  moment  this 
was  realized,  and  so,  notably,  under  the  medieval  law  at  the 
moment  of  release  ("  Auflassung  ").  In  this  case,  therefore,  the 
usufruct  and  the  risk  might  be  separated  (supra,  p.  189).  These 
rules  of  Germanic  law,  —  as  contrasted  with  the  opposing  Roman 
rules  according  to  which  the  "  periculum  "  passed  at  the  conclu- 
sion of  the  agreement  to  sell,  —  were  preserved  in  some  of  the 
regional  legal  systems.  They  were  adopted  by  the  Prussian 
"  Landrecht  "  and  by  the  Austrian  Code,  and  in  the  case  of  chat- 
tels have  finally  been  recognized  by  the  Civil  Code  (§§  446-447). 
When  goods  were  sent  to  a  buyer  from  another  place  the  risk 
passed,  according  to  the  older  Germanic  law,  at  the  moment  of 
dispatch.  This  rule,  also,  has  been  adopted  by  the  Civil  Code, 
following  the  example  of  the  Prussian  "AUgemeines  Landrecht  ", 
1  Cosack,  "Biirgerliches  Recht",  I  (3d  ed.),  429. 
551 


§  83]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

but  with  the  diiVerence  that  such  dispatch  is  no  longer  treated  by 
the  former  as  a  deHvery,  as  it  was  in  the  Prussian  law. 

§  84.  Hire  and  Lease.^  —  (I)  l^nlike  the  unitary  concept  of 
the  Roman  "  locatio  conductio  ",  hire  and  lease  were  developed 
by  the  medieval  law  as  two  different  although  nearly  related 
contracts.  The  distinguishing  characteristic  lay  in  the  fact  that 
in  the  case  of  the  hire  ("  JNIiete  "),  —  which,  to  be  sure,  occurred 
only  rarely  in  the  Middle  Ages,  —  the  user  consisted  exclusively 
in  the  bare  use  ("  Gebrauch  ")  of  the  dwelling,  whereas  in  the 
lease  ('*  Pacht  ")  it  included  also  the  enjoyment  of  the  fruits  and 
profits  of  the  land.  However,  inasmuch  as  in  both  contracts  the 
hirer  or  the  lessee  (the  bare  or  the  usufructuary  lessee)  derived  an 
economic  benefit  from  the  thing,  he  enjoyed,  in  the  theory  of 
Germanic  law,  the  seisin  of  the  object  of  the  contract  of  hire  or 
lease.  Consequently,  in  the  medieval  law  hire  as  well  as  lease 
secured  to  the  person  entitled  thereunder  a  real  right,  which  like 
all  other  real  rights  was  effective  not  only  against  the  other  party 
to  the  contract  but  also  against  all  third  persons  (supra,  p.  1(12). 

(II)  The  Chief  Consequence  of  the  real  nature  of  the  right 
that  inhered  in  the  hirer  and  the  lessee  by  virtue  of  his  seisin, 
was  the  rule  laid  down  in  numerous  legal  sources  ^  that  "  a  sale 
does  not  revoke  a  hire  ",  "  hire  precedes  title  ",  "  hire  '  breaks  'a 
sale"  ("  hur  brickt  koep  ").  This  meant,  in  particular,  that  a 
buyer  or  other  acquirer  of  a  thing  let  to  hire  was  bound  to  recog- 
nize the  validity  of  the  contract  of  hire  as  against  himself,  and 
could  not  evict  the  hirer  before  the  expiration  of  the  contract 
term.  He  was  a  party  by  force  of  law  to  all  contracts  of  hire 
affecting  the  land ;  such  contracts  were  "  concluded  by  the 
original  lessor  ('  Vermieter  ')  not  only  for  himself  but  at  the  same 
time  in  favor  of  and  as  a  charge  upon  all  future  owners  of  the 
land  hired."  ^  To  be  sure,  many  legal  systems,  notably  those  of 
the  Frisian-Saxon  law,  had  recognized  the  opposite  rule  before 
any  contact  with  alien  influences,  —  "  sale  '  breaks  '  hire  "  ("  koep 
de  drift  hure  ap  "),  — and  this  rule  (which  also  prevailed  in  the 
old  French  law)  likewise  passed,  later,  into  many  of  the  regional 
systems.  Some  of  the  modern  codes,  such  as  the  Austrian  and 
the  Saxon,  in  turn  adopted  it;  and  since  it  prevailed  also  in  the 
Roman  law  it  acquired  in  Germany,  in  consequence  of  the  Re- 

1  V.  Briinneck,  "Zur  Geschichte  der  Miethe  und  Pacht  in  den  deutsehen 
und  germanischen  Rechten  des  Mittelalters "  in  Z^  R.  O.,  I  (1880),  138- 
190. 

2  For  example  "Rechtsbuch  naeh  Distinctionon",  II,  4  d,  5. 
'  Cosack,  in  Gerber's  "System"  (17th  ed.),  355. 

552 


Chap.  X]  SPECIAL   FORMS   OF   OBLIGATIONS  [§  84 

ception,  general  validity  in  the  common  law.  The  contract  of  hire 
was  thus  reduced  to  a  mere  obligational  relation.  Other  codes, 
on  the  contrary,  clung  to  the  other  view.  So,  particularly,  the 
Hamburg  law,  the  Prussian  "Allgemeines  Landrecht "  (I,  21, 
§  358),  and  the  Code  Civil  (§  1743).^  Finally,  the  rule  "sale 
yields  to  hire"  has  been  embodied,  after  violent  opposition,  in  the 
present  Civil  Code  (§  571).  Whether  the  real  nature  of  hire  and 
lease  essential  to  the  old  law  of  seisin  has  thus  again  become  posi- 
tive law  is  a  disputed  question,  but  the  aflBrmative  opinion  is 
accepted  only  in  very  rare  instances. - 

(III)  Agistment  ("  Viehverstellung  ■")  was  a  peculiar  contract, 
regulated  in  the  Germanic  law  with  especial  care,  by  which  a 
bailor  delivered  domestic  beasts  of  pasture  to  another,  the  agistor, 
for  feed  and  care.  The  contract  was  concluded  in  various  ways. 
In  some  cases  it  took  the  form  of  a  simple  contract  of  lease,  in 
which  the  agistor  took  over  the  cattle,  collected  the  profits  thereof, 
and  paid  in  return  a  certain  rent  in  money  or  in  kind ;  if  the 
cattle  were  lost  by  "vis  maior",  the  owner  ordinarily  bore  the 
loss,  in  accordance  with  the  general  principles  of  Germanic 
law  (supra,  p.  529),  whereas  the  agistor  must  bear  all  other 
damages.  In  other  cases  a  "  half  "  ("  Halb-")  lease  was  agreed 
upon, — either  the  ownership  of  the  cattle  remaining  with  the  bailor 
but  he  and  the  agistor  dividing  the  offspring,  or  the  cattle  them- 
selves being  apportioned ;  so  that  the  two  parties  constituted  a 
community  or  partnership.  Again,  a  so-called  "Eisernviehver- 
trag"  ("iron"  contract)  was  frequently  concluded:  in  this  the 
lessee  or  agistor  assumed  outright  liability  for  the  cattle  then 
upon  the  land,  as  regularly  taxed ;  at  the  expiration  of  the  lease 
he  was  obliged  to  leave  behind  upon  the  estate  cattle  of  equal 
number  and  of  like  qualities.  The  cattle,  therefore,  could  not  be 
lost  to  the  owner;  whence  the  name  of  "iron"  or  "everlasting" 
cattle.  The  earlier  modern  codes  laid  down  numerous  provisions 
with  respect  to  these  contracts,  which  were  very  differently  regu- 
lated in  details  (so,  too,  the  new  Swiss  Code  of  Obligation  Law 
(§§  302-304)),  but  the  present  Civil  Code  contains  no  special 
provisions  concerning  them. 

1  Cf.  V.  Schwind,  "Kauf  brieht  Miete",  in  "Festschrift  zur  Jahrhundert- 
feier  des  (osterreichisehen)  allgemeinen  biirgerlichen  Gesetzbuchs"  (1911), 
II,  931  et  seq. 

^  See  Cosack's  decided  opinion  to  this  effect  in  his  "  Biirgerliches  Recht", 
II  (6th  ed.),  289  et  seq.,  and  Crome's  equally  decided  opinion,  agreeing  with 
the  prevailing  view,  in  his  "System",  II,  580,  and  in  Ihering's  J.  B., 
XXXVII  (1896),  1  et  seq. 

553 


I  85]  THE    LAW   OF   OBLIGATIONS  [BooK   III 

§  So.  Contracts  for  Labor  and  for  Services.  (I)  Contracts 
for  Labor.'  —  (1)  The  medicml  law.  —  Although  the  legal  sources 
of  the  Middle  Ages  did  not  formulate  the  theoretical  concept  of 
a  labor  contract,  and  although  not  even  a  common  name  for  such 
contracts  was  known  in  the  older  law,  nevertheless  there  was 
developed  in  Germany  even  early  in  thelNliddle  Ages  an  abundant 
law  regulating  them.  From  the  time  of  the  folk-laws  there  existed 
free  laborers  with  whom  independent  contracts  for  labor  were 
concluded ;  and  although  these  were  naturally  of  no  great 
importance  in  rural  districts  they  were  more  important  in  the 
cities.  For  in  these  there  was  developed  from  the  900  s  onward 
an  active  industry,  in  the  form  both  of  handicraft  ("  Hand- 
werk  "),  —  that  is,  labor  upon  an  object  made  for  sale,  —  and  of 
job  work  ("  Lohnarbeit  ",  "  Kundenarbeit  "),  —  labor  for  cus- 
tomers. In  various  industries  job-labor  predominated,  as  house- 
hold labor  at  the  home  cither  of  the  workman  ("  Heimarbeit  ") 
or  the  customer  ("  Storarbeit  ").  In  many  industries  produc- 
tion for  future  sale  ("  Handwerk  ")  was  even  prohibited.  In 
job-work  the  material  was  given  to  the  contractor  ("  Fiirge- 
dinger  ")  to  be  worked  up  on  his  own  responsibility,  whether  in 
his  own  home  or  in  that  of  the  employer.  The  labor  was  always 
remunerated  in  goods  or  money,  for  wages  were  of  the  essence  of 
a  contract  for  labor.  The  wage  was  either  freely  agreed  upon,  or 
as  was  very  commonly  the  case,  it  was  fixed  in  wage-tariffs  es- 
tablished by  local  governmental  authorities  or  by  the  craft.  In 
this  connection  it  did  not  matter,  according  to  the  medieval  view, 
whether  the  ]:)roducer  was  remunerated  in  the  form  of  a  task 
price  ("  Akkordlolm  ")  for  undertaking  the  work  as  a  whole  (in 
which  case  men  spoke  of  "  ein  Werk  besten  ",  or  "  annemen  ", 
" aufncmen  "),  or  in  that  of  a  wage  by  time  ("  Zeitlohn  ").  In  one 
as  in  the  other  case  the  contract  was  treated  as  a  contract  or  hire 
of  labor  ("  Werkvertrag  ",  "Werkmiete"),  and  was  distinguished 
from  a  contract  or  hire  of  services  ("  Dienstvertrag",  "  Dienst- 
miete  "),  —  in  which  latter,  not  the  laborer  himself  but  the  lord 
entitled  to  his  services  "  directed  the  labor  of  another  to  the 
purpose  he  desired."-  The  job-contract  ("verding",  "fiirgriff") 
controlled  the  fabrication  of  most  objects  necessary  in  daily 
life,  but  in  the  case  of  more  considerable  tasks  the  reward 
was  customarily  given  periodically,  particularly  in  the  erection  of 

»  Rnthenhiicher,  " Gosehichto  dos  Workvortrags  nach deutschem  Rechte", 
No.  87  (1906)  of  Gierke's  "Untersuchungen." 
^  Rolhenbiicher,  op.  ciL,  24. 

554 


Chap.  X]  SPECIAL   FORMS   OF   OBLIGATIONS  [§  85 

larger  buildings,  cathedrals,  city  halls,  and  bridges,  and  also,  later, 
the  castles  of  princes  and  moneyed  magnates.  The  lay  builders 
who  displaced,  after  the  rise  of  the  Gothic  style,  the  builders  and 
artisans  of  the  church,  were  customarily  appointed  for  a  definite 
time,  not  infrequently  for  life,  by  a  city,  a  cathedral  chapter,  or 
a  local  ruler,  in  order  to  oversee  a  construction  in  return  for  a 
periodical  wage.  They  in  turn  employed  the  artisans  under 
contracts  for  services,  under  which  pay  was  usually  given  sim- 
ilarly in  the  form  of  a  periodical  wage,  and  only  rarely  by  the 
task.  Inasmuch  as  the  material  was  ordinarily  furnished,  under 
medieval  labor  contracts,  by  the  employer,  and  not  by  the  con- 
tractor, —  although  artists,  even  in  later  times,  almost  always 
furnished  the  canvas  and  the  paints,  especially  the  gold  for  their 
pictures,  —  the  distinction  between  a  labor  contract  and  a  sale 
was  easier  than  in  the  modern  law.  Whether  an  artist's  contract 
should  be  treated  as  one  of  sale  or  for  labor  in  those  cases,  which 
became  more  common  from  the  middle  1400  s  onward,  where 
artists  themselves  furnished  paints  and  gold,  stone  and  wood, 
thereby  undertaking  to  deliver  non-fungible  things  that  were 
still  to  be  created,  does  not  appear  from  the  sources.  The  labor 
was  required  to  be  performed  almost  entirely  by  the  contractor 
personally,  subcontracting  being  for  the  most  part  prohibited. 
As  a  matter  of  course  this  was  true  in  especial  degree  of  contracts 
by  artists,  notwithstanding  which,  however,  this  duty  was  often 
expressly  imposed.  For  example,  Albrecht  Diirer,  in  his  contract 
for  the  painting  of  the  Heller  altarpiece,  expressly  bound  him- 
self to  make  the  middle  piece  himself,  "  and  no  other  human 
being  than  myself  shall  paint  one  stroke  of  it."  ^  Relatively 
little  importance  was  attributed  to  delivery  at  an  appointed 
date ;  provisions  concerning  this  are  rare,  and  delays  beyond  the 
time  appointed  ordinarily  resulted  in  no  legal  prejudice ;  time 
was  not  yet  expensive.  All  the  greater  insistence  was  laid,  how- 
ever, upon  the  excellence  and  utility  of  the  product.  Not  only 
the  person  ordering  the  thing,  but  also  the  crafts,  in  the  interest 
of  the  good  repute  of  their  labor,  strictly  enforced  this.  The 
contractor  was  liable  for  defects  in  the  product  until  acceptance 
by  the  employer,  who  was  bound  to  make  an  examination  of  the 
article.  By  so  doing  he  deprived  himself  of  the  right  of  later 
objection.  If  the  contract  was  defectively  performed  through 
the  fault  of  the  contractor,  the  employer  had  an  action  to  enforce 
its  repair  ("  Chor  und  Wandel  ")  and  for  damages.  Various 
^  Rothetibucher,  op.  ciL,  49. 
555 


§  85]  THE    LAW    OF   OBLIGATIONS  [BooK   III 

beginnings  are  already  found  of  a  right  in  the  employer  to  abate 
the  price,  and  in  the  same  way  he  often  reserved  to  himself  in 
the  contract  a  right  of  rescission.  Conversely,  in  case  the  em- 
ployer defaulted  in  an  act  to  which  he  was  contractually  obligated 
he  must  give  the  contractor  damages ;  and  so,  for  example,  Til- 
mann  Riemenschneider  received  damages  because  he  was  obliged 
to  wait  ten  days  for  scaffolding  that  was  to  be  furnished  him,  and 
which  he  needed,  for  the  erection  of  the  tabernacle  in  the  Wiirz- 
burg  Cathedral.^  The  point  regulated  in  greatest  detail  in  such 
contracts  was  the  duty  of  every  contractor  to  redeliver  the  mate- 
rial delivered  to  him,  but  which  remained  in  the  ownership  of  the 
employer ;  for  the  loss  of  this  was  the  greatest  danger  to  which 
the  employer  was  exposed. 

(2)  The  development  in  the  modern  period.  — The  Germanic  law 
of  labor  contracts  was  maintained  substantially  intact,  in  a  few 
legal  systems,  down  into  the  1700  s ;  notably  in  those  of  Bavaria, 
Liibeck  and  Riga,  and  in  part  in  the  regions  of  the  Kulm  and 
Hamburg  law  as  well.  But  as  respects  some  of  its  rules  it  retained 
authority  far  beyond  these  isolated  districts.  For  it  had  been 
developed  already  in  the  Middle  Ages  as  a  customary  law  based 
upon  constant  contractual  practice,  and  this  basis  of  customary 
law  retained  authority,  and  made  impossible  the  application  of 
the  Roman  law.  The  codes  of  the  modern  period,  under  the 
influence  of  the  common  law,  passed  over  the  labor  contract,  in 
great  part,  in  silence ;  others  mentioned  it  merely  in  connection 
with  contracts  of  hire  ("  Miete  ") ;  and  only  a  few,  as  for  ex- 
ample the  town  law  of  Freiburg,  regulated  its  cardinal  principles 
in  agreement  with  those  of  the  Roman  "  locatio  conductio  operis." 
The  treatment  of  the  labor  contract  that  became  established  in 
legal  theory  after  the  Reception  was  based  substantially  upon 
the  Roman  law.  The  consequence  of  this  was  that  the  peculiar 
character  of  such  contracts  was  overlooked,  and  the  doctrinal 
union  of  labor  contracts  with  tlie  hire  of  things  ("  Sachmiete  ") 
in  the  Roman  law,  which  was  there  due  to  peculiar  historical  rea- 
sons, was  treated  as  a  logical  necessity.  The  Prussian  "Allgcmeines 
Landrecht "  was  the  first  code  to  free  itself,  under  the  influence  of 
ideas  of  natural  law,  from  this  dependence ;  it  treated  the  labor 
contract,  as  was  fitting,  under  contracts  requiring  positive  acts 
("  Handlungen  ").  It  was  followed  by  the  Austrian  Code,  which 
grouped  labor  contracts  with  contracts  for  services  under  the 
concept  of  the  wage  contract  ("  Lohnvertrag  ")  ;  by  the  Swiss 
*  Rothenbiicher,  op.  cit.,  69. 
556 


Chap.  X]  SPECIAL    FORMS    OF    OBLIGATIONS  [§  85 

Code  of  Obligation  Law  (§§  363-379),  by  the  Saxon  Code,  and 
finally  by  the  present  Civil  Code  (§§  631-651).  This  has  adopted, 
as  regards  assumption  of  risk  and  liability  for  defects,  a  whole 
series  of  rules  derived  from  Germanic  law.  An  important  dis- 
tinction, as  compared  with  the  contract  of  sale,  is  found  in  the 
fact  that  in  case  of  imperfect  delivery  the  employer  has  the  right 
and  the  duty  to  demand,  in  the  first  place,  repairs  in  the  work  in 
order  to  remove  the  defect.  Moreover,  in  case  of  delay  in  per- 
formance he  has  a  freer  right  of  rescission  than  was  formerly  recog- 
nized. If  the  material  is  furnished  by  the  contractor  and  the 
article  to  be  made  is  a  fungible  thing,  the  Civil  Code  treats  the 
contract  as  a  pure  contract  of  sale ;  and  in  case  the  thing  is  not 
fungible,  as  a  contract  intermediate  between  a  sale  and  a  contract 
for  labor. 

For  the  rest,  the  modern  development  of  the  law  has  led  to 
an  extreme  specialization  of  the  labor  contract.  The  commercial 
law  has  developed  the  contracts  of  commission  agents,  forward- 
ing agents,  and  of  freight ;  the  private  law  has  created  special 
rules  for  publishers'  contracts,  broker's  contracts,  and  contracts 
of  building  contractors. 

(II)  The  contract  for  services.^  —  The  medieval  law  of  Ger- 
many, as  already  mentioned,  proved  its  ability  to  distinguish 
perfectly  between  the  hire  of  labor  ("  Werkmiete  ")  and  of  ser- 
vices ("  Dienstmiete  ").  In  the  latter  the  worker  himself  was 
not  regarded  as  responsible  for  the  result ;  the  owner  was  bound 
to  direct  the  work.  Moreover,  the  hire  of  services,  which  was  at 
least  as  widely  prevalent  under  rural  conditions  as  in  cities,  was 
outwardly  distinguished  from  the  hire  of  labor ;  especially  by  the 
relation  of  dependence  that  ordinarily  existed  between  the  parties. 
The  most  numerous  of  all  contractual  services  were  those  of  ser- 
vants, relatively  to  which  voluntary  contracts  for  services  with 
wage-earners,  bakers,  etc.,  were  of  decidedly  minor  importance. 

(1)  Contracts  for  household  service  ("  Gesindemiete  "). — The 
contract  for  household  service  played  no  part  in  the  law  so  long 
as  the  necessary  economic  needs  of  the  household  were  partly 

1  Hertz,  "Die  Rechtsverhaltnisse  des  freien  Gesindes  naeh  den  deutschen 
Rechtsquellen  des  Mittelalters",  No.  6  (1879)  of  Gierke's  "Untersu- 
ehungen";  Hedemann,  "Die  Fiirsorge  des  Gutsherrn  fiir  sein  Gesinde 
(Brandenburgisch  preussisehe  Gesehiehte) ",  in  tlie  "Rreslauer  Festgabe 
fur  Dahn",  I  (1905),  165-220;  Lennhoff,  "Das  liindliehe  Gesindewesen 
in  der  Kurmark  Brandenburg  vom  16.  bis  19.  .Jahrhundert",  No.  79  (1906) 
of  Gierke's  "Untersucliungen" ;  Kdiinccke,  "  Reohtsgesehi'ehte  des  Ge- 
sindes in  West-  und  Siiddeutscliland",  in  Heymann's  "Arbeiten",  XII 
(1912). 

557 


§  85]  THE   LAW   OF   OBLIGATIONS  [Book   III 

atteiuled  to  by  the  householder  and  the  members  of  his  family 
as  can  independent  economic  unit,  and  j^artly  by  unfree,  half-free, 
or  even  free,  persons  who  were  either  subjected  to  his  "  numdium  " 
as  lord,  and  so  subject  to  a  relation  of  personal  power,  or  entered 
into  a  real  dependence  by  accepting  a  tenancy.  In  time,  how- 
ever, there  appeared,  beside  these  —  first  of  all  in  the  cities  and 
then  in  the  rural  districts  of  the  country,  although  owing  to  differ- 
ent needs, — a  class  of  free  servants.  In  the  cities  household 
servants  and  industrial  apprentices  became  indispensable ;  in  the 
rural  regions  the  children  of  dependents  ("Untertanenlvindcr"), 
especially,  were  employed  as  farm  laborers  and  maids  for  a  modest 
wage.  This  servant  class  entered  into  relations  with  the  lord 
employing  them  by  means  of  contracts  for  services,  which  not 
only  possessed  a  contractual  character  but  also  constituted  a  sort 
of  bond  under  the  family  law.  The  relation  was  therefore  not 
limited  to  the  performance  of  the  services  contracted  for  and 
payment  of  a  wage  therefor,  but  also,  and  in  particular,  made  it 
the  duty  of  the  employer  to  give  the  laborers  a  certain  amount  of 
care.  However,  from  the  end  of  the  Middle  Ages  onward,  espe- 
cially in  rural  regions,  the  originally  favorable  condition  of  the 
servant  class  suffered  a  progressive  deterioration.  This  was  asso- 
ciated with  the  increasing  repression  of  the  peasant  estate.  Es- 
pecially on  the  seigniorial  estates  of  the  East  there  was  developed 
a  system  of  compulsory  services;  the  lord's  obligation  of  care 
wholly  disappeared,  and  it  is  only  since  the  age  of  rationalism  and 
reform  ("  Aufkliirungszeit  ")  that  a  change  has  resulted  for  the 
better.  In  Prussia  the  "Allgemeines  Landrccht",  and  the  Servants' 
Code  of  November  8,  1810,  based  upon  that  which  was  issued 
for  the  rural  regions,  regulated  the  legal  relations  of  the  servant 
class,  urban  and  rural :  compulsory  service  was  abolished,  a  cer- 
tain social  duty  of  solicitude  was  again  recognized,  but  on  the 
other  hand  the  patriarchial  view  was  still  maintained  in  many 
respects.  The  Prussian  Servants'  Code  is  still  enforced  today  in 
such  portions  of  that  country  as  were  formerly  subject  to  the 
Landrccht.  In  all  other  parts  of  Germany  relations  of  household 
service  were  similarly  regulated  anew  by  statute ;  in  part  by  the 
great  modern  codes  themselves,  and  in  part  and  most  frequently 
by  a  great  quantity  of  local  regulations.  Because  of  the  element 
of  social  police  which  the  whole  matter  involves,  the  Introductory 
Act  to  the  present  Civil  Code  has  left  it  to  State  law ;  but  at 
the  same  time  it  has  expressly  abolished  (§  95)  the  right  of  phys- 
ical punishment  formerly  enjoyed   by  persons  entitled  of  legal 

558 


Chap.  X]  SPECIAL   FORMS   OF   OBLIGATIONS  [§  86 

right  to  the  service  of  others.  In  addition  to  this  the  provisions 
of  State  law  are  supplemented  by  the  Civil  Code  itself,  and  by 
other  imperial  statutes. 

(2)  Other  contracts  for  services.  —  Other  contracts  for  services 
are  distinguished  from  the  hire  of  household  services,  at  least 
under  the  law  as  it  exists  to-day,  by  the  fact  that  in  them  the  per- 
son obligated  to  the  service  does  not  live  with  his  employer. 
They  may  be  of  various  kinds  as  respects  their  content.  Their 
restriction  in  the  Roman  law,  —  which  passed  over  into  the  com- 
mon law,  —  to  purely  "  personal  "  services,  was  abandoned  by 
the  Saxon  Code,  and  is  also  lacking  in  the  present  German  Civil 
Code.  A  special  importance  attaches  to  contracts  for  industrial 
services.  The  industrial  apprenticeship  contract,  which  is  dis- 
tinguished from  a  simple  contract  for  services  by  the  fact  that  it 
imposes  upon  the  employer  or  master  ("  Dienstherr  ")  the  chief 
obligation  under  the  contract,  namely  the  education  of  the  ap- 
prentice, was  already  richly  developed  in  the  medieval  law  of  the 
craft-gilds.  ]\Iore  recently  it  has  been  specially  regulated  by 
the  Industrial  Code  and  as  respects  commercial  apprentices  by 
the  Commercial  Code.  These  statutes,  as  well  as  the  Civil  Code 
in  its  most  important  provisions,  have  imposed  upon  the  master 
a  certain  care  for  the  physical  and  spiritual  well-being  of  the 
apprentice  that  extends  beyond  the  field  of  pure  contract,  thus 
returning  to  some  extent  to  the  more  paternalistic  viewpoint  of 
the  medieval  law. 

§  86.  Loans  at  Interest.^  —  During  the  supremacy  of  an  agri- 
cultural economy  money  loans  ("  Darlehnsgeschafte  ")  occurred, 
on  the  whole,  only  rarely ;  for  the  lack  of  personal  credit  and  the 
absence  of  any  generally  current  representative  of  value  ("  Wer- 
te  ")  excluded  the  possibility  of  interest.^  Barter  and  pledge 
dominated  economic  life.  These  actual  conditions,  which  be- 
came established  everywhere  in  the  Occident  after  the  disintegra- 
tion of  the  Roman  Empire  and  the  decay  of  the  money  economy 
fully  developed  in  its  cities,  were  favorable  to  the  theories  that 
were  advocated  by  the  church,  and  enforced  by  it  with  increasingly 
severe   prohibitions.     For    whereas    Roman    imperial    legislation 

1  Piintschart,  art.  "Borg",  in  Hoop's  "Reallexikon",  I,  304,  art.  "Dar- 
lehn",  in  the  same,  389  et  seq. ;  Ilcdemnnn,  "Fortschritte  des  Zivilreehts", 
I,  9  et  seq.,  132  et  seq.  Tlie  abundant  literature,  particularly  that  of  eco- 
nomic history,  is  indicat(>d  bv  r.  Iklow,  art.  "Wucher",  in  the  W.  B.  der 
Volksw.,  11* (3d  ed.,  191 1),'  1422-1430.  Also  I sopescul-Grecul,  "Das 
Wucherstrafrecht",  I  (190G). 

2  Huber,  "Schw.  Privatrecht",  IV.  866. 

559 


§  86]  THE   LAW   OF   OBLIGATIONS  [BoOK  III 

actually  permitted  unlimited  interest,  and  even  Justinian's  reduc- 
tion of  the  interest  rate  to  6  per  cent  and  8  per  cent  had  only  slight 
result,  the  Church,  in  view  of  certain  passages  in  the  Old  and 
New  Testament  (especially  the  saying  hi  Luke,  vi,  35  :  "  mutuum 
date  nihil  inde  sperantes  ")  repudiated  the  loan  for  interest  as 
inconsistent  with  the  law  of  God,  The  acceptance  of  interest 
was  first  prohibited  to  ecclesiastics  and  then  in  turn  to  laymen. 
Carolingian  legislation  adopted  this  prohibition,  although  it 
attained  no  great  practical  imj)ortance  for  the  good  reason  that 
the  transactions  so  prohibited  were  as  good  as  unknown  in  Ger- 
manic lands.  It  was  only  when  a  money  economy  began  again 
to  develop  with  the  increasing  prosperity  of  cities,  and  the  allow- 
ance of  credit  began  to  play  an  increasingly  important  role,  that 
the  church  opened  a  new  and  energetic  opposition,  —  but  one 
that  was  henceforth  opposed  to  the  necessities  of  commerce. 
Alexander  III,  at  the  Lateran  Council  of  1179,  threatened  the 
"  usurarii  manifesti  "  with  excommunication  and  denial  of  a 
churchly  burial.^  Gregory  X,  in  1274,  ordered  their  expulsion 
from  communes,  corporations,  and  cities,  as  well  as  the  repayment 
of  all  interest  collected,  under  penalty  of  a  denial  of  absolution 
and  of  churchly  burial ;  at  the  same  time  he  declared  them  inca- 
pable of  testamentary  dispositions,  and  their  testaments  void.^ 
Finally,  Clement  V,  in  1311  at  the  council  of  Vienna,  declared 
null  and  void  every  secular  statute  opposed  to  these  commands 
of  the  Church.^  In  this  ecclesiastical  legislation,  which  was  de- 
fended by  the  Schoolmen  with  philosophical  arguments,  interest 
was  classified  under  the  concept  of  usury,  and  the  latter  was 
understood  in  its  broadest  and  most  comprehensive  sense,  in- 
cluding usury  alike  from  credit  and  from  things  (*'  Kredit-", 
"  Sachwoicher  ").  In  particular,  it  was  applied  to  the  contract 
of  sale,  the  principle  that  only  a  "  pretium  iustum  "  might  be 
demanded  leading  in  this  connection  to  numerous  restrictions 
and  to  demands  for  governmental  price  tariffs.  At  this  point, 
however,  the  usury  theory  of  the  Church  came  into  conflict  with 
the  industrial  policy  observed  by  the  secular  authorities  and  the 
craft-gilds  in  the  regulation  of  handicrafts  (.mpra,  p.  131).  The 
greater  the  increase  of  commerce  and  the  necessities  of  trade,  the 
less  observed  was  the  Canonic  prohibition  of  usury.  They  created 
abundant  means  of  evading  it,  which,  though  denounced  by  the 

»  C.  3,  X :  do  usuris,  5,  19. 

2  C.  1,  2,  VI :   de  usuris,  5,  5. 

3  C.  un.  in  Clem.,  dc  usuris,  5,  5. 

5G0 


Chap.  X]  SPECIAL   FORMS    OF    OBLIGATIONS  [§  86 

Canonists,  were  commonly  practiced,  and  were  the  source  of  many- 
new  and  peculiar  institutes  of  law.  Such  were,  for  example,  the 
institute  of  contractual  pledge  with  seisin  "  ut  de  vadio  ",  already 
discussed,  as  well  as  the  contractual  pledge  of  a  lessee  {supra,  pp. 
260,  379) ;  the  purchase-rent  {supra,  p.  371) ;  the  so-called  "  con- 
tractus trinus  ",  in  which  a  loan  was  concealed  under  the  form 
of  a  partnership  contract  between  lender  and  borrower;  and 
the  "  montes  "  that  were  developed  in  Italy, — aggregations  of 
capital  which  were  accumulated  by  a  number  of  capitalists  and 
turned  over  to  state  or  city  as  a  loan  in  exchange  for  an  annuity. 
Inasmuch,  moreover,  as  the  Church  permitted  interest  in  case  of 
default  in  payment,  and  equally  in  all  cases  where  the  interest 
("  Zins  ")  represented  compensation  for  actual  loss  or  perform- 
ance of  special  services,  there  resulted  from  these  other  oppor- 
tunities for  evasion,  particularly  the  possibility  of  interest  on 
debts  evidenced  by  bills  or  promissory  notes  ("  Wechselschuld  ") . 
Again,  although  Jews,  as  such,  were  by  no  means  excepted 
from  the  Church's  prohibition  of  usury,  the  penalties  at 
the  disposal  of  the  Church  had  of  course  no  efficacy  against 
them.  The  popes  were  therefore  compelled  to  be  satisfied 
with  inciting  the  secular  authorities  to  measures  against  Jew- 
ish usurers.  But  these  rulers,  on  the  contrary,  very  generally 
granted  to  the  Jews  an  express  privilege  to  take  interest  in  viola- 
tion of  the  Canonic  prohibition,  since  they  themselves  profited  by 
taxing  the  Jews  upon  their  usurious  earnings.  In  the  course  of 
time  the  prohibition  was  more  and  more  frequently  violated  even 
by  the  Christian  population,  and  the  rate  of  interest  rose,  on  ac- 
count of  the  difficulty  of  securing  money  loans  on  interest,  to  an 
enormous  height.  Like  the  rich  Italian  bankers,  especially  those 
of  Florence,  who  were  the  first  international  money-changers 
on  a  big  scale,  and  who  attended  in  particular  to  the  extensive 
banking  business  of  the  Roman  curia ;  like  the  lesser  Christian 
money-changers  of  Asti  in  Lombardy  and  Cahors  in  Provence 
(so-called  "  Lombards  "  and  "  Kawerschen  ")  who  settled  in 
all  the  lands  of  the  Occident  and  proved  their  ability  to  secure 
from  rulers  equal  privileges  with  the  Jews  —  so  all  other  classes  of 
the  native  population,  nobles  and  burghers,  bishops  and  simple 
clericals,  gave  and  collected  interest  on  money.  At  the  same 
time  legal  theory  and  legislation  clung  to  the  Canonic  doctrine. 
The  Humanists  and  Reformers,  with  the  exception  of  Calvin, 
also  adhered  to  it.  The  Imperial  Police  Ordinance  of  1530  set 
forth  a  catalogue  of  prohibited  usurious  transactions,  and  pcr- 

561 


§  86]  THE    LAW    OF    OBLIGATIONS  [BoOK   III 

mitted  only  those  contracts  for  land-credit  which  were  known 
as  "  Wiederverkiiufe"  ("  resales  "),  such  as  the  purchase-rent  and 
the  contractual  pledge  ("  Satzung  "). 

Many  local  legal  systems  conceded  the  justice  of  interest 
as  early  as  the  1500  s,  —  for  example  the  Nuremberg  Refor- 
mation of  1504  and  the  Saxon  Constitutions  of  1572;  and 
these  were  finally  followed  by  imperial  legislation.  The  last 
Recess  of  the  Imperial  Diet  of  1654  expressly  permitted,  in 
entirely  general  terms  and  for  the  entire  Empire,  the  col- 
lection of  interest,  just  as  this  had  already  been  permitted 
to  the  Jews  by  the  Imperial  Police  Ordinance  of  1577.  To  be 
sure,  complete  freedom  of  interest  was  by  no  means  thereby  intro- 
duced. On  the  contrary  a  statutory  rate  of  interest  was  estab- 
lished. The  imperial  statutes  fixed  this  at  5  per  centum ;  many 
of  the  regional  systems  also  adopted  this,  whereas  others  intro- 
duced the  Roman  rate  of  6  per  centum.  Still  other  systems  recog- 
nized different  rates :  thus,  the  Prussian  "Landrecht"  prescribed 
5  per  cent,  for  transactions  between  ordinary  citizens,  G  per  cent, 
for  merchants,  and  8  per  cent,  for  Jews.  Licensed  loan-houses 
were  quite  commonly  granted  privileges  with  respect  to  the  rate 
of  interest.  In  the  meantime,  also,  the  Canonic  theory  had  been 
overturned  by  the  law  of  nature,  and  the  Church  itself,  notwith- 
standing that  it  never  formally  repealed  the  prohibition,  adopted 
a  milder  practice.  From  the  end  of  the  1700  s  onward  the  tend- 
ency of  the  times  turned  against  any  restriction  whatever  upon 
interest  agreements,  and  in  particular  against  maximum  rates 
established  by  statute.  In  17S7  Joseph  II  introduced  for  the 
first  time  by  statute,  though  but  temporarily,  the  principle  of 
complete  freedom  in  interest  agreements,  —  subject,  to  be  sure, 
to  the  ob.servance  of  the  rule  that  made  claims  for  usurious  inter- 
est uncollectable  by  suit.  The  Code  Civil  also  went  ON'cr  to  the 
principle  of  unregulated  interest;  but  in  this  case  there  followed 
a  restrictive  statute  (of  September  3,  1S07)  which  limited  interest 
upon  ordinary  loans  to  5  per  cent  and  for  mercantile  loans  to  G 
per  cent.  The  efforts  directed  toward  the  removal  of  all  restric- 
tions were  crowned  with  success  in  Germany  by  the  General  Com- 
mercial Code  (§  292)  as  regarded  mercantile  transactions,  and 
by  the  Act  of  the  North  German  Confederation  of  November  14, 
1SG7  (which  was  later  extended  throughout  the  Empire  with  the 
exception  of  Bavaria)  as  regarded  trade  among  other  citizens  than 
merchants.  In  Bavaria  a  statute  of  December  5,  18G7,  similar  to 
the  Federal  statute,  likewise  abolished  restrictions  upon  contractual 

562 


Chap.  X]  SPECIAL    FORMS    OF   OBLIGATIONS  [§  87 

interest.  This  legislation  recognized  only  two  limitations  upon  the 
free  regulation  of  interest :  if  more  than  6  per  cent  was  agreed  upon, 
the  debtor  received  a  right  to  give  notice  every  six  months,  after  the 
expiration  of  the  first  half  year,  of  intended  payment ;  and  further, 
interest  upon  interest  could  not  be  agreed  upon  in  advance. 

Inasmuch,  however,  as  the  complete  abolition  of  usury  thus 
introduced  led  to  great  evils,  the  statute  of  1867  was  sub- 
jected to  thorough  revision.  An  imperial  statute  of  ]\Iay  24, 
1880,  without  again  introducing  a  maximum  interest  rate, 
designated  certain  rates  of  interest  as  usurious,  namely  such  as 
set  a  rate  which  is  objectively  unusually  high,  and  those  which 
rest  subjectively  upon  an  exploitation  of  the  necessities,  or  levity, 
or  inexperience  of  the  debtor.  Such  usurious  agreements,  ac- 
cording to  the  provision  of  the  statute  of  1880,  were  not  only 
void  in  themselves,  but  also  voided  the  entire  transaction  of  which 
they  were  a  part.  Further,  the  concept  of  ijsury  has  been  given 
a  comprehensive  meaning  similar  to  that  which  it  possessed  in 
the  Canonistic  theory,  first  by  the  Prussian  "  Landrecht  "  and 
by  many  statutes  following  that,  and  now  also  by  imperial  legisla- 
tion. An  imperial  statute  of  June  19,  1893,  declared  void  all 
transactions  in  which  pecuniary  advantages  in  any  way  exces- 
sive should  be  stipulated  in  favor  of  one  party  as  a  result  of  his 
exploitation  of  the  necessity,  inexperience,  or  levity  of  the  other 
party  to  the  contract,  no  matter  whether  such  advantage  should 
or  should  not  be  compensation  for  an  advance  of  credit,  —  all 
this,  to  be  sure,  only  when  done  in  the  ordinary  course  of  trade 
or  practice.  The  present  Civil  Code  has  rounded  out  the  regu- 
lation of  the  subject  by  applying  generally  the  preceding  ideas. 
The  general  rule  is  freedom  in  interest  rates ;  in  the  absence  of 
special  agreement  statutory  rates  apply  :  ordinarily  4  per  centum, 
in  mercantile  transactions  5  per  centum.  But  every  juristic  act 
is  void,  as  usurious,  by  which  "  one  person,  by  exploiting  the 
necessity,  the  levity,  or  the  inexperience  of  another,  and  in  ex- 
change for  some  act  or  performance  on  his  part,  causes  to  be 
promised  or  granted  to  himself  or  to  another  person  pecuniary 
advantages  which  so  greatly  exceed  the  value  of  his  act  of  per- 
formance that  such  advantages,  under  all  the  circumstances,  are  | 
strikingly  out  of  proportion  thereto  "  (§  138,  2). 

§  87.    Wagering  and   Gambling.^  —  (I)    A  wager  is  a  contract 
in  which  "  each  party  promises  to  the  other  a  pecuniary  payment 

1  Wilda,  "Die  Lehre  von  dem  Spiel  aus  dem  dcutsehcn  Reehte  iieu 
begrundot",in  Z.  deut.  R.,  II  (1830).  133-193,  and  "Die  Wetten",  in  the 

563 


§  S7]  THE    LAW    OF   OBLIGATIOXS  [BoOK   III 

('  ^'ermogensleistlIng  ')  in  case  such  party  be  wrong  and  the 
other  party  right  in  their  respective  assertions."  ^  That  the 
expression  "  Wette  "  (supra,  pp.  375,  497),  which  was  originally 
far  more  comprehensive,  should  have  thus  become  restricted 
for  this  particular  contract  is  explainable  by  the  fact  that  the 
pledge  of  some  object,  in  the  old  sense  of  the  law  of  liability,  has 
always  remained  essential  to  it.  The  stake,  —  some  thing,  in 
ancient  times  also  the  human  body  or  a  piece  of  it,  —  is  deposited 
as  is  a  pledge  for  an  obligation.  The  obligation  in  the  case  of  the 
wager  consists  in  this,  that  the  bettor  commits  himself  to  an  asser- 
tion whose  truth  is  to  be  later  determined. ^  It  seems  to  follow 
from  the  scanty  evidences  of  the  older  sources  that  according 
to  the  legal  view  prevailing  in  the  jNIiddle  Ages  wagers  that  were 
made  "  thoughtfully  and  earnestly  ",  especially  if  in  the  presence 
of  witnesses  and  accompanied  by  the  drinking  of  earnest-wine 
(supra,  p.  507),  or  were  secured  by  the  deposit  of  a  stake,  were 
enforceable  by  suit,  provided  they  involved  no  dishonorable  or 
ridiculous  object ;  and  that  only  excessively  high  wagers  could  not 
be  enforced.  This  view  was  in  agreement  with  the  Roman  law. 
It  persisted,  therefore,  in  the  common  law  even  after  the  Recep- 
tion. On  the  other  hand  the  regional  legal  systems  adopted 
another  view.  The  Prussian  "  Landrecht"  recognized  a  right  of 
action  at  least  "  when  the  wager  had  been  made  on  the  spot  in 
cash,  and  deposited  either  in  court  or  in  the  hands  of  a  third 
person"  (I.  11,  §579).  Other  modern  codes,  however,  —  the 
Code  Civil,  the  Austrian  and  Saxon  Codes,  the  Swiss  Code  of 
Obligation  Law  (§513),  —  have  refused  legal  enforceability  to 
wagers,  though  barring  a  demand  for  repayment  after  settlement. 
This  rule  has  been  followed  by  the  present  Civil  Code  (§  672). 

(II)  Gaming  is  identical  with  the  wager  to  the  extent  that  it 
is  a  transaction  based  upon  chance.  In  this  case,  however,  the 
chance  lies,  not  in  an  uncertainty  concerning  the  correctness  or 
incorrectness  of  an  assertion,  but  in  an  uncertainty  of  the  happen- 
ing of  any  other  form  of  future  event ;  this  happening  is  for  the 
one  party  favorable  and  for  the  other  party  unfavorable.  That 
the  parties  themselves  should  contribute  by  their  acts  to  the 
happening  or  the  non-happening  of  the  event  is  not  necessary. 
Again,  in  the  case  of  gaming  a  corporeal  object  may  be  the  thing 

same,  VIII  (1843),  200-239;  Schuster,  "Das  Spiel,  seine  Entwicklung  und 
Bedeutung  im  doutschon  Roeht"  (1878). 

'  Cosack,  "BiirK'crlif'liPs  liocht",  I  (4th  od.),  580. 

*  f.  Amira,  "Ohligationcnrecht",  II,  2.50.  Puntschnrt,  in  Krit.  Vj.  S., 
XLVII  (3d  ser.  XI,  1907),  69  et  seq.,  expresses  a  contrary  opinion. 

564 


Chap.  X]  SPECIAL   FORMS   OF   OBLIGATIONS  [§  88 

sought  to  be  won,  for  Tacitus  informs  us,  as  is  well  known,  that 
the  primitive  Germans,  in  gambling,  staked  their  freedom  and 
their  body  (Germ.  24).  But  in  gambling  the  stake  is  not,  as  in 
the  wager,  legally  liable  under  the  law  of  obligations;  for  there 
is  here  lacking  any  legal  duty  ("  Schuld  ")  for  which  it  could  be 
liable ;  "  it  is  merely  the  object  of  a  conveyance  of  title  that  is 
subject  to  a  condition  precedent  dependent  upon  the  result  of 
the  gamble."  ^  Gambling  contracts  were  permitted  under  the 
medieval  law,  and  they  were  enforceable ;  but  the  action  by  the 
winner  did  not  lie  against  the  heirs  of  the  loser.-  The  winner  also 
possessed  a  right  of  distraint  against  the  loser.  From  the  1200  s 
onward,  however,  restrictions  were  introduced  directed  against 
the  excessive  rage  for  gambling.  Gambling  debts  were  quite 
commonly  declared  unenforceable  at  law,  and  gambling  in  general, 
or  at  least  certain  kinds  of  gambling  or  high  gambling  or  gambling 
at  forbidden  places,  was  prohibited  under  penalties.  It  always 
remained  true,  however,  despite  such  prohibitions,  that  the  loser 
could  not  demand  the  return  of  a  gambling  debt  that  he  had  paid. 
As  a  result  of  an  acquaintance  with  the  principles  of  the  Roman 
law,  which  proceeded  from  other  viewpoints,  many  uncertainties 
resulted.  The  Roman  distinction  between  licensed  games,  in 
which  the  winner  was  given  an  action  to  compel  the  payment  of 
the  debt,  and  prohibited  games,  in  which  the  loser  could  bring  an 
action  to  compel  the  return  of  a  debt  he  had  paid,  passed  over 
into  the  common  law  in  the  form  that  games  in  which  there  was  a 
money  stake  were  enforceable,  whereas  those  that  rested  upon 
credit  were  treated  as  unenforceable.  But  most  of  the  regional 
systems  maintained,  in  contrast  to  this  rule  of  the  common  law, 
—  which,  moreover,  was  a  controverted  one,  —  the  unenforcea- 
bility of  all  gambling  claims.  This  was  true  of  the  Prussian 
"  Landrecht ",  the  Austrian  and  Saxon  Codes,  and  the  Swiss  Code  of 
Obligation  Law  (§  513).  The  present  Civil  Code,  also,  has  taken 
this  position ;  without  distinguishing  between  gaming  and  wagers, 
it  provides  that  a  legal  obligation  can  be  created  by  none  of  these 
transactions,  and  that  nothing  performed  upon  the  basis  of  the 
game  or  the  wager  can  be  redemanded  (§  762). 

§  88.  Claims  based  upon  Commercial  Paper .^  —  (I)  The  Con- 
ception and  Varieties  of  Commercial  Paper.  —  Claims  embodied 

»  V.  Amira,  op.  cit.,  II,  255.  «  Ssp.,  I.  6,  §  2. 

3  For  an  understanding:  of  the  history  as  well  as  of  the  theory  of  the 
law  of  commercial  paper  the  most  important  of  all  works,  from  the  general 
Germanistic  viewpoint,  are  those  of  Brunner  :  "Die  frankisch-romanische 
Urkunde",  in  Z.  Hand.  R.,  XXII  (1877),  64-124,  505-554  (reprinted  in  his 

565 


§  S8]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

in  commercial  paper  ("  Wertpapier  ")  do  not  involve  a  group  of 
obligations  which  belong  together  because  of  similar  content; 
the  characteristic  which  unites  them  is  rather  one  of  a  formal 
nature.  For  the  exercise  of  certain  rights  it  is  necessary  to  have 
possession  of  a  paper,  namely  of  commercial  paper.  This  j)aper 
indicates  the  person  who  is  entitled  to  the  right,  or  at  least  it 
authorizes  him  to  exercise  the  same.  "  A  connnercial  paper  is 
an  instrument  embodying  a  private  right  the  exercise  of  which  is 
restricted,  under  the  private  law,  by  the  possession  of  the  instru- 
ment." ^ 

Very  different  rights  may  in  this  manner  be  united  with  a 
paper. 

]\Iany  commercial  papers  are  of  a  "  personal  "  nature,  —  so- 
called  "  corporate  "  paper;  they  embody  a  right  of  membership 
in  a  capitalistic  association.  Such  are  shares  of  corporate  stock, 
provisional  shares  ("  Interimsschein  "),  mining  shares,  and  shares 
in  the  Imperial  Bank. 

Another  group  is  constituted  of  commercial  i)apers  under  the 
law  of  things.  These  are  either*  associated  because  of  their 
content  with  the  law  of  land,  as  in  the  case  of  the  rent-deeds 
(**  Rentenbriefe  "  and  "  Giiltbriefe  ")  of  the  older  law,  and  the 
hypothecs,  land-debts  ("  Grundschuldbriefe  ")  and  land-annui- 
ties  ("  Rentenschuldbriefe  ")   of  the  modern  law;    or  they  are 

"Forsehungen"  (1894),  524—631);  "Carta  und  Notitia,  ein  Beitrag  zur 
Reehtsgeschichte  der  germanischen  Urkunde.  Commentationes  philo- 
logicae  in  honorem  Th.  Mommseni"  (1877),  .^)7(Vr)89 ;  "Zur  Geschichto 
des  Inhaberpapicrs  in  Deutschland",  in  Z.  Hand.  R.,  XXIII  (1878),  225- 
262,  also  in  "Forsehungen",  631-661;  "Das  franziisisehe  Inhaberpapior 
dcs  Mittelaltors  und  sein  Verliiiltnis  zur  Anwaltschaft,  zur  Zossion  und 
zum  Orderi)apier",  in  the  "Berliner  Festsclu'ift  fiir  Thol"  (1879);  "Zur 
Reehtsgeschichte  der  romischen  und  germanischen  Urkunde"',  I  (1880, 
the  only  volume);  "Die  Werthpapiere",  in  "TIandl)uch  des  deutschen 
Handels,  —  See-  und  Wechselreehts "  edited  by  Endemann,  II  (1882),  140- 
235.  On  the  exceptions  recently  taken  to  the  historical  researches  of 
Brunner  by  Brnndilcoiie,  "  Le  cosi  dette  clausole  al  portatore  nei  doeu- 
menti  mcdievaliitaliani",  in  the  "  liivistadidirittocommerciale",  IT  (1904), 
373-415,  cf.  Schupfer,  "I  titoli  al  portatore  nei  documenti  italiani  del  medio 
evo",  in  the  "Rivista  italiana  per  le  scienzo  giuridiclu^",  XLIL  (1907), 
175-238.  A  still  more  general  attack  upon  BruniKM*  has  been  recently 
made  by  Freundl:  "Wertpapiere  im  antiken  und  I'riihmitd'lalterlichen 
Rechte"  (2  vols.,  1010).  See  also  Partt^rh  in  Z.  Hand.  R.,  LXX  (3d  ser. 
XI,  1912),  437-480;  Philippi  in  "Gottingische  gelehrte  Anzeigen", 
CLXXiy  (1912),  13(>-143.  The  contraverted  points  are  still  unsettled; 
lirnnncr's  theory  is  adopted  in  the  text  as  well  as  at  p.  .502  supra.  See 
also,  in  addition  to  the  rich  literature  of  the  commercial  law  which  cannot 
here  be  cited,  Jnrohi:  "Die  Wertpapiere  im  biirgerlichen  Recht  des 
deutschen  Reiches"  (1001);  Langctt.:  "Die  Kreationstheori(!  im  heutigen 
Reichsrecht"  (1006);  Jncobi:  "Das  Wertpapier  als  Legitimationsmittel" 
(1906). 

'  Brunner  in  Endemann,  147. 

566 


Chap.  X]  SPECIAL   FORMS   OF  OBLIGATIONS  [§  88 

associated  with  the  law  of  chattels,  as  e.g.  all  so-called  "  de- 
livery-" paper  (bills  of  lading,  waybills,  warehouse  receipts), 
which  not  only  serves  for  the  enforcement  of  a  claim  but  also 
fulfills  functions  under  the  law  of  things,  inasmuch  as  the  de- 
livery of  the  paper  has  the  same  real  effect  as  the  delivery  of 
the  goods  themselves.^ 

The  greatest  legal  and  economic  importance,  however,  attaches 
to  commercial  paper  embodying  contract  claims ;  that  is,  docu- 
ments whose  possession  determines  the  right  to  enforce  the  obli- 
gation that  is  therein  embodied.^  For  this  reason,  although  it 
is  evident  that  the  importance  of  commercial  paper  extends  far 
beyond  the  law  of  contractual  claims,  they  may  properly  be  dis- 
cussed in  this  place.  Again,  they  are  very  different  in  their  form 
and  content.  Thus,  some  of  them  are  based  upon  a  nude  ("  ab- 
stract ")  obligational  promise,  —  for  example  the  bill  of  exchange; 
whereas  others,  as  for  example  the  interest  coupon,  express 
the  "  causa  promittendi  "  and  therefore  contain  a  "  specific  " 
obligational  promise.  Further,  as  regards  the  great  majority  of 
such  papers  the  debtor's  obligation  to  pay  is  dependent  upon  a 
presentation  of  the  paper  ("  Prasentationspapier  ") ;  although 
this  may  in  the  case  of  some  be  dispensed  with. 

In  the  case  of  all  commercial  paper,  —  including  paper  that 
embodies  contractual  claims  ("  Forderungspapier  "),  — the  ques- 
tion is  important  whether  they  are  necessary  only  for  the  enforce- 
ment or  also  for  the  transfer,  or  for  the  enforcement,  transfer, 
and  creation  of  the  documentary  right.  Instruments  that  are 
essential  to  the  creation  of  a  documentary  right  are  called  "  con- 
stitutive "  instruments.  The  most  "  perfect  "  commercial  papers 
are  those  in  which  all  three  elements  mentioned  are  united. 

Of  particular  importance  in  the  classification  of  commercial 
paper  is  the  circumstance  that  some  of  them  "  secure  to  the 
holder  the  documentary  right  exactly  as  it  is  expressed  in  the 
instrument  "  ^  {infra,  under  (III)  2).  Brunner  calls  such  instru- 
ments "  commercial  paper  supported  by  public  faith  "  (literal 
obligations) ;  if  they  are  papers  embodying  contractual  claims 
they  are  designated  "  Skriptnr-  "  obligations. 

A  very  important  distinction  as  concerns  the  negotiability  of 
commercial  papers  is  found  in  the  fact  that  in  the  case  of  some  the 

1  See  for  a  more  detailed  treatment  Heymann,  "Die  dingliohe  Wirkimg 
der  handelsrechtlichen  Traditionspapiere",  in  the  "Breslauer  Festgabefiir 
Dahn".  Ill  (1905),  133-241. 

2  Brunner,  op  cit.,  lol. 

3  Gierke,  "Privatreeht",  II,  125. 

5G7 


§  88]  THE    LAW    OF   OBLIGATIONS  [BoOK   III 

power  to  enforce  the  documentary  right  exists  in  favor  only  of  the 
person  expressly  named  in  the  paper  ("  Xamen-  ",  "  Rektai)a- 
pier  " ;  "  nominal  "  paper) ;  while  in  the  case  of  others  such  right 
exists  in  favor  of  the  person  designated  or  whomsoever  he  shall 
designate  (order-paper) ;  and  finally,  in  a  third  group,  such  right 
exists  in  favor  of  the  holder  as  such  (bearer-paper).  The  devel- 
opment of  these  three  different  types  is  the  result  of  a  long  his- 
torical process. 

(II)  The  Historical  Development.  —  The  use  of  documents  in 
legal  transactions  comes  down  from  primitive  times.  The  Ger- 
manic system  of  legal  instruments  was  developed  in  close  depend- 
ence upon  the  Roman  notarial  instrument  of  Byzantine  prac- 
tice.^ 

The  attitude  of  the  Germanic  law,  however,  in  this  connection 
was  by  no  means  merely  receptive ;  it  added  its  own  valuable 
ideas,  and  it  was  from  the  union  of  these  with  the  non-Germanic 
elements  derived  from  the  antique  world  that  there  originated  the 
commercial  paper  of  medieval  and  modern  times.  Its  develop- 
ment constitutes  a  distinct  branch  of  European  legal  history. 
A  notably  leading  part  was  played  in  this  process,  in  the  early 
]\Iiddle  Ages,  by  Italy,  "  the  home  of  the  European  forms  of  obli- 
gational  instruments."  ^ 

(1)  "Carta  and  Notitia."  —  In  the  earliest  period  of  the 
use  of  legal  instruments  there  already  existed  the  fundamental 
division  of  documents  used  in  private  legal  transactions  into 
"  business  "  {"  Geschafts-  ")  instruments  and  mere  evidential 
("  Beweis-  ")  documents ;  a  distinction  then  most  sharply  developed 
in  tlie  Italian  law,  and  which  later  became,  and  is  at  the  present 
day,  fundamental.^  The  "  business  "  instrument  of  the  Frank- 
ish  period,  —  "  carta  ",  "  epistola  ",  "  testamentum  "  ;  also 
called,  according  to  the  particular  transaction  involved,  "  cessio  ", 
"  venditio  ",  etc.,  —  at  once  evidenced  and  was  the  means  of 
consummating  the  legal  transaction.  It  was  a  "  dispositive  " 
instrument  because  its  maker  effected  by  means  of  it  a  legal 
disposition ;  and  it  was  also  a  "  constitutive  "  instrument,  inas- 
much as  he  created  by  means  of  it  a  legal  relation.  It  was  ordi- 
narily drawn,  as  earlier  in  the  late  Roman  law,  in  a  "  subjective  " 
form ;   the  maker,  that  is  the  party  disposing,  expressed  his  will 

'  Partsch,  op.  cit.,  47G.  See  also  Rabel,  "Ilaftung  des  Verkaufers" 
{supra,  54(3),  .34  el  sen. 

2  Brunner,  "  F'orschungen",  647. 

^  CJ.  Rcdlich,  "Privaturkunden"  (supra,  219),  4  cl  seq. 

568 


Chap.  X]  SPECIAL    FORMS   OF   OBLIGATIONS  [§  88 

in  the  first  person.  In  case  he  did  not  write  it  himself,  but  as 
was  then  the  rule  caused  it  to  be  written,  he  at  least  performed 
the  so-called  "  firmatio  " ;  that  is  he  subscribed  it,  or  put  upon  it 
some  manual  mark  ("  signum  "),  or  touched  it  by  laying  his 
hand  upon  it.  Such  a  "  carta  ",  after  execution,  was  delivered 
by  the  maker  to  the  other  party  to  the  contract,  the  "  desti- 
natary  "  ("  Destinatar  ").  This  delivery  of  a  document,  this 
"  traditio  cartee  "  in  a  legally  formal  manner,  was,  as  above 
explained  (p.  502),  the  formal  act  that  was  essential  to  the  con- 
summation of  the  juristic  act,  to  the  creation  of  the  documentary 
right.  In  this  act  the  document  served  as  a  "  wadia."  Differ- 
ent from  this  was  the  simple  evidential  document,  the  "  notitia  ", 
"  breve  ",  "  memoratorium  "  ;  a  statement  concerning  a  legal 
transaction  which  was  written  in  the  third  person  by  the  desti- 
natary  or  by  the  other  party  to  the  contract,  or  by  a  third  person 
at  their  instance,  merely  for  the  purpose  of  supplying  WTitten 
evidence  of  a  legal  act  consummated  without  the  execution  of  a 
document. 

In  the  post-Frankish  period  the  "  carta  "  disappeared  in  Ger- 
many even  among  those  racial  branches  that  had  theretofore 
commonly  employed  it,  —  the  Franks,  the  Alamanians,  and  the 
Bavarians.  In  Italy,  also,  it  lost  ground  to  the  "  notitia  "  from 
the  1100  s  onward.  It  was  only  in  the  form  of  the  sealed  instru- 
ment, as  "  letter  ('  Brief  ')  and  seal  ",  that  the  "  carta  "  again 
became  prominent  in  the  later  Middle  Ages.  In  the  end  the 
unsealed  notarial  instrument  attained  wide  prevalence  in  Ger- 
many, as  earlier  in  Italy ;  especially  after  the  imperial  notarial 
ordinance  of  1512  conferred  upon  it  probative  qualities. 

(2)  Special  clauses  of  commercial  paper,  and  particularly  of 
order  and  bearer-paper.  —  As  has  already  been  mentioned  in 
various  places  (supra,  pp.  519,  534),  the  great  practical  impor- 
tance of  documents  in  the  early  INIiddle  Ages,  —  and  above  all, 
of  the  dispositive  instruments,  the  "  cartas  ",  —  lay  in  the  fact 
that  they  afforded  a  means  of  avoiding  the  inconveniences  that 
resulted  to  increasing  commerce  from  the  lack  of  general  powers 
of  attorney  in  litigation,  and  from  the  imperfect  assignability  of 
contractual  rights.  This  means  was  found  in  the  possibility, 
which  was  peculiar  to  the  Germanic  law  (supra,  pp.  518  et  seq.), 
of  contracts  for  the  benefit  of  third  persons.  This  led  to  the  device 
of  various  clauses  whose  introduction  resulted  in  the  first  great 
development  of  the  law  of  commercial  paper.  These  clauses  may 
be  grouped,  in  accord  with  Brunner's  theory,  into  four  groups. 

569 


§88]  THE  LAW  OF  OBLIGATIONS  [Book  III 

(A)  Dem.vnd  and  tr.\nsfer  clauses.  —  To  the  first  group  be- 
long what  he  calls  "Exaktions-"  (demand)  clauses,  and  the  "  Bege- 
biings-"  (transfer)  clauses  derived  therefrom.  In  the  Prankish 
period  such  clauses  were  to  the  elfect  that  the  drawer,  address- 
ing the  destinatary,  promised  to  perform  "  tibi  aut  cui  dederis  ad 
exigendum  "  (demand-clause),  or  "tibi  aut  cui  cautum  (  =  'cau- 
tionem  ',  document)  in  manum  emiseris,  cui  cartam  dederis."  In 
Italy  these  clauses  can  be  identified  from  the  500  s  onward.  In  Ger- 
many, wliere  the  clause  "  aut  cui  cartam  dederis  "  was  used  from 
the  first  half  of  the  800  s  onward  in  gifts  of  land  with  reservation 
of  usufruct  to  secure  the  same  to  a  third  person,  it  was  usual  after 
the  1200  s  to  emj)loy  the  phrase  :  "  to  you  or  to  whomsoever  holds 
this  letter  with  your  will  (or,  good  will)",  "  to  you  or  to  the  honest 
—  or,  the  rightful  —  holder."  In  Italy,  from  the  1100  s  onward, 
there  appeared  at  times  in  place  of  the  older  Frankish  transfer 
clauses  the  words :  "  vel  cui  ordinaveris  ",  "  vel  cui  prseceperis." 
These  were  later  displaced  by  the  national  forms  "  o  chi  ordinera  ", 
"  air  ordine."  In  France  it  was  customary  at  first  to  say  "  vel 
cui  mandaveris  ",  "a  NN  ou  a  son  commandement  ('command', 
'commis ')  "  ;  and,  since  the  1600  s  quite  generally,  "ou  a  son  ordre." 
In  Germany  also  the  old  forms  were  displaced,  under  the  influence 
of  the  French  law,  by  clauses  "  an  Ordre." 

(B)  Clauses  of  attorney.  —  Frankish :  "  tibi  aut  cui  hoc 
scriptum  vice  tua  ",  or  "  pro  parte  tua  in  manu  paruerit." 
Similarly,  the  German :  "  to  you,  or  to  whoever  shall  hold  this 
letter  with  your  good  will  (or,  on  your  account)." 

(C)  Alternative  bearer  clauses.  —  Frankish  :  "  tibi  aut 
cui  hoc  scriptum  in  manu  paruerit."  German :  "  to  you  or  to 
whoever  shall  hold  this  letter  "  ;  or,  "  to  the  holder  (*  Behiilter  ', 
'  Inhaber  ')  of  this  letter." 

(D)  Pure  bearer  clauses.  —  Frankish:  the  drawer  promises 
to  perform  "  ad  hominem,  apud  quem  hoc  scriptum  in  manu 
paruerit."  German :  "  to  the  holder  (or,  presentor)  of  this 
letter." 

Of  these  bearer  clauses,  which  were  used  particularly  in  the 
early  period  in  imposing  contractual  penalties  (supra,  pp.  521  et 
seq.),  the  alternative  form  appeared  in  Italy  in  the  800 sand  the 
pure  form  in  the  900  s.  In  Germany  countless  instruments  Vvith 
bearer  clauses  of  the  most  various  forms  are  found  from  the  1200  s 
onward. 

In  all  these  clauses  one  characteristic  was  evidently  common; 
namely  that  the  maker  of  the  instrument  promised  performance 

570 


Chap.  X]  SPECIAL    FORMS   OF   OBLIGATIONS  [§  88 

under  certain  circumstances  to  some  third  person,  still  unknown, 
who  should  be  the  holder  of  the  letter,  and  who  was  not  a  party 
to  the  contract.  But  they  showed  considerable  differences  in 
detail.  In  the  case  of  the  demand,  the  transfer,  and  the  attorney 
clauses,  the  third  person  was  not  to  be  determined  by  the  mere 
fact  of  holding  the  instrument  but  by  the  future  voluntary  act 
of  a  known  and  designated  person. ^  Brunner  therefore  groups 
these  clauses  together  as  restricted  or  ciualified  clauses  to  bearers. 
The  demand  and  transfer  clauses  were  limited  by  an  order  of  the 
obligor  therein  named ;  the  attorney  clause,  by  a  representative 
relation.  As  contrasted  with  these,  the  alternative  and  pure 
clauses  to  bearer  were  unqualified ;  only,  in  the  former  the  bearer 
was  named,  alternatively,  in  addition  to  the  designated  obligor, 
and  in  the  latter  he  was  named  alone.  The  demand  and  transfer 
clauses  required  that  the  third  person  presenting  the  instrument 
should  prove  that  this  had  been  given  to  him  by  the  first  taker, 
designated  therein ;  that  he  had  been  designated  ("  ordiniert  ") 
by  the  latter.  The  proof  of  the  transfer  was  commonly  effected 
by  means  of  special  instruments  that  were  executed  to  the  third 
person  by  the  designated  payee ;  in  Germany  thej^  were  known 
as  "  Willebriefe "  ("will-letters").  In  France,  however,  the 
usage  became  common  in  the  1600  s  to  write  upon  the  back  of  the 
obligational  instruments  {"  in  dorso  ",  "  en  dos  ")  a  notice  so 
empowering  the  third  person,  the  "  order."  This  was  the  "  en- 
dorsement ",  which  finally  spread  from  France  to  all  countries 
as  the  sole  form  for  legitimation  and  transfer  of  "indorsable" 
commercial  paper. 

Just  as  proof  of  transfer  was  necessary  in  the  case  of  transfer 
and  order  clauses,  so  in  the  case  of  the  representation  clause 
proof  was  required  of  the  delivery  of  a  power  of  attorney. 
Papers  containing  such  qualified  clauses  to  bearer  were  therefore 
"  limited  by  the  shortness  of  the  course  they  could  follow  from 
the  hand  of  the  person  therein  named  to  the  hand  of  the  '  order  ' 
or  representative."  ^  In  contrast  to  these,  instruments  with 
bearer  clauses,  whether  alternative  or  pure,  "  could  pass  through 
several  hands."  ^  For  in  their  case  presentation  of  the  paper 
sufficed,  without  it  being  necessary  that  the  holder  should  prove 
either  a  transfer  of  the  right  or  a  grant  of  a  power  of  attorney. 
This  gave  an  extraordinarily  easy  circulation  to  bearer  paper. 

*  Brunner,  "Das  franzosische  Inhaberpapier",  29. 
2  Brunner,  "Forsehungen",  585. 
'  Brunner,  op.  cit. 

571 


§  88]  THE   LAW    OF   OBLIGATIONS  [BoOK  III 

They  represented  a  mode  of  identifying  the  subject  to  a  right 
which  was  peciiHar  to  Germanic  law,  and  which  possesses  simi- 
hirity  to  real  rights.^  As  in  the  case  of  the  latter  a  right  was 
so  associated  with  the  soil  that  it  inhered  in  each  successive  owner 
of  the  land  {.s'upra,  p.  178),  so  here  any  temporary  owner  of  the 
instrument  appeared  as  the  subject  of  the  right  therein  embodied. 

The  institute  of  bearer  paper  was  more  and  more  shaken 
in  the  second  half  of  the  Middle  Ages  by  the  increasing  influence 
of  the  Roman  law,  to  which  the  ideas  which  it  represented  were 
unknown,  until  finally  "  the  strong  Romanistic  movement  " 
that  made  itself  felt  in  France  in  the  1500  s,  and  which  also  • 
decisively  influenced  other  countries,  "  robbed  it  of  its  vital 
principle  and  degraded  it  to  the  rank  of  mere  '  nominal '  (*  Na- 
mens-  ')  paper  "  -  by  requiring  from  the  bearer  proof  that  the 
right  in  question  had  been  transferred  to  him,  or  that  a  power 
of  attorney  had  been  given  him  to  enforce  it.  This  confusion 
was  due  in  part  to  the  fact  that  unrestricted  representation  in 
litigation  and  the  assignability  of  contractual  choses  in  action 
had  been  meanwhile  established. 

However,  this  crisis  was  "  overcome,  first  in  the  Nether- 
lands, and  then  in  France  and  Germany,  in  the  case  of  paper 
with  a  pure  order  clause."  ^  As  respects  such  paper  the  dispen- 
sability of  proof  of  the  right  or  of  the  power  of  attorney  became 
nothing  less  than  international  law.  Commercial  paper  with 
alternative  clauses  to  bearer  disappeared  from  commercial  usage, 
their  functions  being  assumed  by  order  paper,  since  this  was 
closely  assimilated  as  respects  negotiability  to  bearer  paper,  — 
namely,  in  that  whereas  the  order  clause  originally  permitted  only 
a  subsequent  transfer  of  the  paper,  in  accord  with  its  literal 
expression,  an  unrestricted  negotiability  was  developed  in  the 
1600  s,  first  of  all  in  France,  whence  it  found  entry  into  other 
countries.  In  the  case  of  bills  of  exchange,  unrestricted  nego- 
tiability, even  in  the  absence  of  an  order  clause,  became  a  statu- 
tory presumption,  which  could  be  repelled  only  by  a  negative 
clause  (."  nicht  an  Order  "). 

With  this  step,  the  concepts  of  the  Germanic  law  were  firmly 
established,  in  the  case  of  bearer  as  well  as  of  order  paper;  and 
both  these  legal  institutes  were  transformed  into  most  welcome 
instruments  of  commerce,  especially  in  banking.     Order  papers 

*  Brunner,  op  cit.,  545. 

*  Brunner,  "Das  franzosisohe  Inhaberpapier",  68  et  seq. 
'  Brunner,  in  Eudemann,  197. 

572 


Chap.  X]  SPECIAL    FORMS    OF   OBLIGATIONS  [§  88 

were  legally  developed  mainly  in  the  commercial  law.  Most 
elaborate  was  the  development,  in  many  respects  international, 
of  the  bill  of  exchange.  The  General  Bills  of  Exchange  Act, 
perfected  December  9,  1847,  one  of  the  most  excellent  of  mod- 
ern statutes,  created  for  this  instrmnent  a  uniform  law  for 
all  Germany,  at  first  merely  in  fact,  but  since  the  adoption  of  that 
Act  as  a  statute  of  the  present  Empire  also  de  jure.  As  regards 
the  "  perfect  "  or  technical  forms  of  order-paper,  which  are  used 
almost  exclusively  in  business,  the  General  Commercial  Code  laid 
down  certain  general  norms.  It  declared  to  be  such  (Arts.  301- 
302) :  merchants'  orders  to  pay  or  deliver  ("  Anweisungen  "),  mer- 
chants' promissory  notes,  bills  of  lading,  way-bills,  warehouse 
receipts,  bottomry  bonds,  and  marine  insurance  policies ;  an 
enumeration  which  was  substantially  adopted,  along  with  the 
legal  rules  respecting  them,  by  the  new  Commercial  Code  (§  363). 
As  respects  bearer  paper,  the  present  Civil  Code  has  established 
for  the  first  time  uniform  rules  of  law  in  its  section  upon  "  obli- 
gations to  bearer  "  (§§  793-808). 

(Ill)  Chief  Germanic  Elements  in  the  Present  Law  of  Commer- 
cial Paper.  —  The  Germanic  legal  ideas  which  were  fused  in 
the  early  jMiddle  Ages  with  the  late  Roman  system  of  legal  docu- 
ments in  the  creation  of  commercial  paper,  still  dominate  its 
modern  form,  however  much  this  has  been  perfected  as  compared 
with  its  medieval  form.  Without  any  attempt  to  give  a  system- 
atically complete  review  of  the  present  law  of  commercial 
paper,  we  will  here  refer  briefly  to  those  points  in  which  its  Ger- 
manic character  is  still  particularly  influential. 

(1)  The  creation  of  the  debtor's  duty  to  perform.  —  The  question 
how  there  arises  in  the  cases  of  order  and  bearer  paper  (in  the 
case  of  nominal  paper  the  question  cannot  arise),  the  right  of  a 
third  person,  upon  presentation  of  the  paper  as  special  indorsee  or 
bearer,  to  demand  from  the  debtor  the  performance  therein  prom- 
ised, is  one  of  the  most  debated  problems  of  the  modern  private 
law.  But  if  one  considers  the  history  of  their  development,  and 
bears  in  mind  certain  controlling  Germanic  principles,  its  solution 
cannot  be  doubtful.  As  already  stated,  the  researches  of  Brunner 
have  shown  us  that  both  in  the  late  Roman  and  in  the  early  medie- 
val law  the  "  Urkundungsakt  ",  that  is  the  act  "  by  which  a 
juristic  act  is  consummated  by  use  of  a  dispositive  instrument  ",^ 
was  never  the  icriting,  the  physical  preparation  ("  Kreation  "), 
but  always  the  delivery  or  tradition  of  the  document,  —  at  first 
1  Brunner,  in  Endemann,  1G5. 

573 


§  SS]  THE    LAW    OF    OBLIGATIONS  [BoOK   III 

with  legal  formalities  but  later  informally,  —  from  the  maker 
to  the  destinatary.  Already  in  the  Prankish  period  the  rule 
pre\ailcd  which  was  formulated  in  the  IGOO  s  by  the  celebrated 
English  jurist  Coke  for  the  contemporary  law  of  his  country : 
"  traditio  facit  loqui  cartam."  ^  The  Germanic  law  did,  indeed, 
under  some  circumstances,  attribute  legal  force  to  a  unilateral 
promise  {.tiipra,  pp.  513  et  seq.) ;  but  the  element  which  here 
produced  legal  consequences  was  not  a  unilateral  act  of  the  maker 
of  the  instrument,  but  the  bilateral  act  of  delivering  the  instru- 
ment ;  that  is,  the  contract  concluded  between  the  maker  and  the 
transferee  of  the  instrument  in  the  form  of  a  "  traditio  cartae." 
And  therefore  it  is  not  the  "  writing-theory "  ("  Kreations- 
theorie '"),  —  which  in  its  various  forms  (writing-theory  proper; 
"  title-theory  "  "  EigentumsverschafFmigstheorie  ")  explains  the 
documentary  right  as  originating  in  a  unilateral  act  of  the 
drawer,  —  that  is  historically  justified,  but  the  opposing  "con- 
tract "  ("  Vertrags-  ")  theory.  True,  this  would  not  alone  be 
sufficient  to  justify  one  in  postulating  that  as  the  basis  also  of 
the  modern  law.  But  what  is  more,  when  rightly  understood  it 
affords  an  entirely  satisfactory  explanation  for  the  modern  rules, 
which  were  once  deemed  explainable  only  through  the  "  writing  " 
theory. 

(2)  The  '^legitimizing"  quality  of  commercial  paper.  —  As  al- 
ready remarked,  the  essential  nature  of  commercial  paper  is 
found  in  its  purest  form  in  "  commercial  paper  based  upon  public 
faith  "  (Brunner),  or  as  they  are  also  called  "  literal  "  obligation 
papers  (Gierke).  Among  these  belong,  according  to  the  present 
law  of  credit  instruments  ("  Forderungspapiere  "),  the  so- 
called  "  perfect  "  order  papers,  that  is  those  forms  of  order 
paper  in  which  the  ])aper  is  essential  to  the  creation,  the  transfer, 
and  the  enforcement  of  the  right  therein  embodied ;  namely, 
the  bill  of  exchange,  the  seven  forms  of  paper  recognized  by  the 
commercial  law  which  are  enumerated  in  §  303  of  the  Commercial 
Code  (.s'lipra,  p.  573),  and  all  forms  of  bearer  paper.  In  these 
forms  of  commercial  paper  the  third  person,  who  is  in  a  position 
to  establish  his  claim  under  the  literal  reading  of  the  promise  as 
the  person  to  whom  performance  is  promised,  —  that  is  to  say, 
either  as  the  immediate  or  mediate  indorsee  ("  Order  ")  of  the 
first  holder  therein  named,  or  as  bearer,  —  can  rely  absolutely 
upon  tlic  ]>aper.  Defenses  that  do  not  result  from  the  pai)er  it- 
self but  from  the  defective  rights  of  his  predecessors  in  title,  can- 
1  Brunner^  "Carta  unci  Notitia",  576. 
574 


Chap.  X]  SPECIAL   FOKMS   OF   OBLIGATIONS  [§  88; 

not  be  set  up  against  him ;  the  paper  authorizes  liim  to  enforce 
against  the  maker,  under  all  circumstances  and  according  to  its 
literal  reading,  the  right  therein  embodied. 

This  legitimizing  force  of  commercial  paper  based  upon  public 
faith  is  so  strong  that  it  is  effective  even  where  the  substantive 
right  and  the  ostensible  right  do  not  coincide.  Such  a  separation 
occurs,  for  example,  when  an  unqualified  indorsement  is  made 
by  one  who  is  entitled  to  such  right  to  a  third  person  merely  for 
the  purpose  of  collection  (for  which  purpose  a  qualified  indorse- 
ment is  also  available  under  the  law  of  bills  and  notes,  although 
this  form  is  almost  unknown  in  practice).  The  third  person  here 
appears  to  others  as  the  owner  of  the  paper,  and  therefore  as  the 
subject  of  the  right;  whereas  in  the  intention  of  the  parties  he 
has  no  independent  rights,  but  is  entitled  merely  to  collect  the 
sum  as  the  attorney  of  the  person  thereto  entitled.  This  confu- 
sion, however,  agrees  precisely  with  the  intention  of  the  parties. 
Such  a  "  legitimated  "  holder  of  bearer  or  order  paper  ought  to 
be  entitled  to  present  his  claim  against  the  debtor,  either  in  or 
out  of  court,  "  without  being  obliged  to  disclose  whether  he 
is  enforcing  his  own  right  as  a  legal  successor  to  another's  title, 
or  is  only  enforcing,  in  effect,  the  right  of  another,  as  an  agent."  ^ 
To  use  Jacobi's  apt  expression,  the  question  here  is  quite  the  same 
as  in  the  transfer  of  medieval  seisin,  which  likewise  always  carried 
the  right  of  representation  in  a  law  suit;  and  this,  even  when 
the  question  was  one  of  the  transfer  of  a  mere  derivative  seisin, 
dependent  upon  a  higher  one. 

Such  a  separation  of  substantive  and  formal  rights,  however, 
may  also  take  place  in  such  manner  that  even  an  unauthorized 
possessor,  who  should  not  enforce  the  right  embodied  in  the  paper, 
nevertheless  can  effectually  enforce  it.  In  the  case  of  "  perfect  " 
order  paper,  a  bona  fide  indorsee  himself  acquires  title  to  the 
paper,  and  so  to  the  right  therein  embodied,  by  any  formally 
correct  indorsement,  even  when  the  paper  was  earlier  stolen  or 
lost ;  as  may  be  the  case,  for  example,  if  the  rightful  holder  has 
made  an  indorsement  in  blank  and  the  thief  thereafter  fills  in 
such  blank  indorsement  with  his  own  name,  and  then  reindorses 
the  pajier  to  another  party.  In  the  case  of  bearer  paper,  how- 
ever, it  is  entirely  immaterial  how  the  paper  has  reached  the 
hands  of  the  holder ;  even  when  he  himself  has  stolen  it,  he  ap- 
pears to  be  the  rightful  holder  as  against  bona  fide  third  persons. 
In  these  cases  also  the  medieval  Germanic  idea  of  "  legitimation  " 
1  Jacobi,  "Wertpapier  als  Legitiuiationsmittel",  58. 
575 


§  88]  THE   LAW   OF   OBLIGATIONS  [BoOK  III 

has  the  same  effect  as  in  the  law  of  seisin,  and  in  the  modern  law 
of  the  public  faith  of  the  land-book.  Even  the  mere  writing  out 
of  a  commercial  paper  is  a  "  dangerous  action,"  Wor  a  "  worth- 
less piece  of  paper  is  transformed  by  it  into  an  instrument  adapted 
to  transfer  for  value."  -  If  the  drawer  of  this  instrument  gives  it 
out  of  his  own  hands,  and  a  perfect  order  paper  or  a  bearer  paper 
is  involved,  he  thereby  assumes  a  contractual  obligation  to  make 
the  promised  payment  to  such  third  person  as  may  establish  his 
claim  by  presentation  of  the  paper,  as  bearer  or  as  indorsee  of  the 
original  payee.  The  intention  of  the  contracting  parties,  there- 
fore, as  in  the  case  of  every  contract  for  the  benefit  of  a  third  per- 
son, is  to  the  effect  that  such  third  person  shall  be  authorized  to 
enforce  the  right.  The  third  person  presenting  the  paper  and 
legitimizing  himself  in  the  manner  required  by  law,  has  in  his 
favor  the  presumption  of  fact  ("  Rechtsschein  ")  that  he  too  has 
acquired  the  paper  by  contract,  that  is  by  transfer ;  a  prima  facie 
right  which  protects  him  until  proof  of  the  contrary.  Nor  is  it 
difTerent  even  in  the  rare  "  pathological  "  case  where  the  paper 
has  gotten  out  of  the  hands  of  the  drawer  before  delivery,  and  has 
then  been  put  by  a  third  person  into  commercial  circulation. 
For  here  also  the  drawer  has  created  by  his  subscription  the 
"  dangerous  "  condition ;  he  has  created  a  thing  which  is  bound  to 
suggest  that  it  has  been  put  into  circulation  by  him  intentionally, 
that  is  that  it  has  been  delivered  to  the  payee  under  an  ordinary 
contract.  For  this  reason  the  right  of  the  holder  presenting  the 
instrument  rests  upon  a  contract  whose  existence  is  presumed  in 
his  favor.  This  case  also,  therefore,  by  no  means  requires  one 
to  abandon  the  "  contract  "  in  favor  of  the  "  writing  "  theory. 

The  counterpart  of  this  far-reaching  duty  that  rests  upon  the 
maker  of  the  paper  is  the  "  emancipatory  effect  "  of  payment  by 
him  to  a  person  ostensibly  entitled  thereto.  Such  payment 
involves  the  destruction  of  the  right  of  the  person  justly 
("  materiell  ")  entitled  thereto  whenever  the  substantive  be- 
comes thus  separated  from  the  apparent  right. 

Topic  2.    Obligations  based  upon  Torts 

§  so.  Obligations  based  upon  Torts.  (I)  Tort  Obligations 
in  General.  —  (I)  The  older  law. — The  earliest  law  saw  in 
every  violation  of  an  obligation  a  misdeed  that  was  subject 
to    penalty.     From  this  viewpoint  of  penal   law,  there  was  no 

'  Jacobi,  op.  cil.,  50.  ^  Gierke,  "Privatrocht",  II,  111. 

676 


Chap.  X]  SPECIAL   FORMS   OF   OBLIGATIONS  [§  89 

difference  between  the  consequences  of  a  breach  of  contract 
and  those  of  violating  a  person's  non-contractual  rights.  The 
violation  resulted,  in  the  latter  as  in  the  former  case,  in  a  lia- 
bility of  the  debtor  for  a  bot ;  and  in  the  one  as  in  the  other  case 
the  bot  served,  at  first,  the  two  ends  of  punishment  and  damages. 
A  public  penalty  (a  wite),  in  addition  to  the  bot,  was  required 
only  in  the  case  of  certain  acts  of  a  criminal  ("  verbrecherisch  ") 
character. 

This  viewpoint  was  abandoned  in  the  Middle  Ages ;  the  conse- 
quences, under  the  criminal  and  the  private  law  respectively, 
of  a  violation  of  another's  rights,  were  separated,  and  only  the 
latter  left  to  the  regulation  of  the  private  law.  But  the  influence 
of  the  old  viewpoint  of  the  criminal  law  continued  to  be  so  far 
felt  that  the  same  strict  principles  continued  to  prevail,  as  re- 
spected the  obligor's  duty  of  penance,  in  case  of  violation  of  non- 
contractual rights,  as  were  controlling  in  obligations  originating 
in  a  breach  of  contract  (supra,  pp.  527  et  seq.).  The  obligor  was 
bound  to  make  good  all  damage  whatever  caused  by  his  unlawful 
conduct,  and  no  distinction  was  made  between  legal  fault 
and  an  involuntary  act  ("  Ungefahr  ")  so  far  as  regarded  this 
question  of  compensation.  In  accord  with  the  principle,  "  he 
who  has  unwillingly  done  must  willingly  pay  ",  the  damage  done 
by  persons  not  responsible  for  their  actions  (children,  insane 
people)  was  therefore  made  good  from  their  property ;  moreover, 
a  child  doing  such  damage  might  be  delivered  to  the  injured  per- 
son, in  order  that  the  latter  might  cancel  the  obligation  by  its 
labor.  But  no  penalty  was  imposed  upon  irresponsible  persons.^ 
Here  too,  it  was  immaterial  whether  the  damage  had  been  done 
by  a  positive  act  or  by  a  failure  to  act.^  As  in  the  case  of  breaches 
of  contract,  so  here  only  "  external  "  accident  could  free  one 
from  an  obligation  to  give  damages.  Aside  from  that,  only  self- 
defense  ("  Notwehr  ")  was  regarded  as  sufficient  to  preclude  legal 
responsibility,  and  therewith  the  duty  to  give  damages. 

(2)  The  modern  law.  —  As  a  result  of  the  Reception,  the  Roman 
principles  attained  the  authority  of  common  law.  Inasmuch  as 
the  Roman  law  contained  no  general  principle  similar  to  the  Ger- 
manic, but  recognized  an  obligation  of  giving  damages  (aside 
from  cases  of  fraud)  only  in  cases  under  the  Aquilian  action,  — 
that  is,  only  in  case  of  damage  done  to  things  by  positive  act,  — 
and  in  certain  other  special  cases,  the  Reception  involved  a  con- 
siderable relaxation  of  the  native  rules.  The  regional  legal  sys- 
1  Ssp.,  II,  65,  §  1.  2  Ssp.,  II,  38. 

577 


§  89]  THE    LAW    OF   OBLIGATIONS  [BooK   III 

terns,  however,  continued  quite  commonly  to  recognize  the 
authority  of  the  latter.  The  great  modern  codes,  in  particuhir, 
again  intrcxhiced  an  extension  of  damages  as  compared  with 
the  Roman  law,  in  that  they  allowed  such  for  every  act  that  vio- 
lated another's  right,  whether  by  misfeasance  or  by  non-feasance.^ 
However,  in  Germany  as  in  Rome  some  fault  ("  Verschulden  ") 
was  quite  generally  required.  The  present  Civil  Code,  also,  has 
laid  the  element  of  fault  ("  Verschuldungsprinzip  ")  at  the 
basis  of  its  regulation  of  tort  damages.  But  in  so  doing  it  has 
attempted  to  make  a  graded  classification  according  to  the  nature 
of  the  wrongful  act.  If  there  is  involved  an  injury  to  life, 
body,  health,  freedom,  property,  or  to  any  other  right  of  another, 
then  mere  negligence  suffices  to  constitute  fault  (§  823,  1)  ;  if  a 
statute  designed  for  the  protection  of  the  other  person  is  violated 
by  the  wrongfid  act,  it  may  be  that  according  to  the  provisions 
of  the  statute  fault  is  assumed  under  some  circumstances,  only 
in  case  of  gross  negligence  or  premeditation  (§  823,  2) ;  if,  finally, 
the  damage  to  the  other  person  constitutes  a  violation  of  public 
morals  ("  gute  Sitten  "),  actual  intent  is  necessary  (§  S2G). 

But  the  influence  of  the  viewpoint  of  the  older  German  law, 
which  disregarded  personal  fault,  was  felt  even  in  the  modern 
period  to  the  extent  that  some  modern  codes  retained  in  some 
cases  a  liability  for  damages  against  mentally  irresponsible 
persons.  The  present  Civil  Code  has  also  adopted  this  rule, 
subject  to  the  qualification  that  such  liability  arises  only  when 
it  accords  with  equity,  and  when  it  will  not  deprive  such 
irresponsible  person  of  the  means  necessary  for  his  maintenance 
in  a  manner  befitting  his  social  rank  (§§  827-829).  Above  all, 
however,  modern  legislation  —  first  in  various  State  laws  and 
later  in  the  imperial  statute  of  June  7,  1871  — relating  to  the  lia- 
bility of  railroads  and  other  similar  public  works  has  imposed 
upon  persons  operating  these  an  absolute  liability  for  deaths  and 
bodily  injuries,  subject  only  to  the  exceptions  of  vis  maior  and 
contributory  negligence;  and  has  even  placed  upon  the  ojjerator 
the  burden  of  proving  those  circumstances  which  relieve  him  from 
his  liability,  —  a  reversal  of  the  burden  of  proof  otherwise  prevail- 
ing in  the  present  law. 

Particular  provision  is  made  in  modern  statutes  concerning  the 
extent  of  one's  liability  for  damages  in  case  of  the  killing  or  bodily 

1  For  example,  Code  Civil,  §  1382 :  "Any  act  whatever  of  one  person, 
which  does  damage  to  another,  obliges  him  to  whose  fault  it  is  due  to  make 
reparation  therefor." 

578 


Chap.  X]  SPECIAL   FORMS   OF  OBLIGATIONS  [§  89 

injury  of  another  person.  In  case  of  death  they  include  the 
cost  of  any  attempted  cure,  the  burial,  and  the  expenses  of  mourn- 
ing, and  also  the  claims  of  relatives  to  maintenance  which  are 
defeated  by  the  death  of  the  one  maintaining  them ;  and  in  case 
of  injuries  to  the  body,  to  expenses  for  care  and  cure,  and  the 
claims  of  the  person  injured  for  lost  or  lessened  earning  capacity. 
General  principles  are  now  laid  down  in  the  Civil  Code  (§§  843- 
844). 

As  regards  bodily  injuries  there  were  allowed  from  the  1400  s 
onward,  in  addition  to  compensation  for  pecuniary  damage,  cer- 
tain punitive  damages  —  so-called  "  smart-money  "  ("  Schmer- 
zensgeld  ")  —  that  were  unknown  to  the  older  law.  Somewhat 
similar  to  these  was  the  so-called  Saxonbot  ("  Sachsenbusse  "), 
which  was  retained  in  the  Saxon  law  even  after  the  Reception, 
and  which,  in  case  the  injured  person  was  confined  by  the 
injury,  was  payable  to  him  in  the  manner  of  the  fixed  bots  of 
the  old  law.  To  this  group  of  claims  for  damages  belongs  also 
the  claim  of  a  woman,  variously  developed  in  the  older  legal 
systems,  whose  virtue  has  been  violated  by  force  or  by  seduc- 
tion. In  agreement  with  these  old  laws,  the  Civil  Code,  while 
generally  allowing  in  case  of  torts  compensation  for  pecuniary 
damage  only,  also  allows  compensation  for  non-pecuniary  damage 
in  the  case  of  physical  injuries,  deprivation  of  liberty,  and  sexual 
offenses. 

(II)  Liability  for  Damage  done  by  Other  Persons,  Animals, 
and  Things.^  —  (1)  Liability  for  other  persons. — The  idea  that 
every  person  must  be  answerable  for  damages  proceeding  from 
his  immediate  environment  {"  Lebenskreise ")  led  in  the  old 
Germanic  law,  exactly  as  in  the  laws  of  allied  peoples,  to  peculiar 
consequences.  The  lord  was  originally  answerable  for  harm  done 
by  slaves  of  which  he  was  the  owner,  since  they  themselves,  as 
things,  were  irresponsible  under  the  criminal  law.  Only  in  time 
was  an  amelioration  of  this  theory  realized,  notably  in  the  form 
that  the  slave's  act  was  attributed  to  his  master  as  one  resulting 
merely  from  misfortune,  provided  the  latter  delivered  him  to  the 
injured  person  ;  and  finally  there  was  recognized  an  independent 
responsibility  of  the  slave  under  the  criminal  law,  the  liability 

1  Brunner,  "Ubcr  absiehtslose  Missetat  im  altdeutschen  Strafrechtc", 
in  the  "Sitz.  Ber.  Berliner  Acad.",  1890,  815-842;  also  in  his  "For- 
schungen",  487-523;  ik  Amira,  "Thicrstrafen  und  Thierprozesse",  in 
Inst.  ost.  G.  F.,  XII  (1891).  545-601;  Isaij,  "Die  Verantwortliehkeit 
des  Eigentiimers  fiir  seine  Tiere",  in  Ihering's  J.  B.,  XXXIX  (1898), 
209-322. 

579 


§  89]  THE   LAW   OF   OBLIGATIONS  [BoOK  III 

of  his  master  being  restricted  to  a  mere  real  ("  Sach-  ")  liability.^ 
For  the  same  reason  the  employer  ("  Dienstherr  ")  was  liable 
in  the  medieval  law  for  the  torts  of  his  employees;  both  his 
household  servants,  obligated  to  liim  by  contract,  and  those 
persons  whose  services  he  utilized  in  the  performance  of  works 
undertaken  by  contract,  such  as  artisans,  carters,  etc.  Similarly, 
the  liability  of  the  master  of  a  household  continued  to  be  recog- 
nized for  the  members  of  the  family  and  for  other  persons  resident 
in  his  house. 

In  sharp  contrast  to  these  principles,  the  Roman  law  (as  re- 
ceived in  Germany)  held  the  master  responsible,  in  theory,  only 
when  he  himself  had  been  in  some  manner  at  fault.  But  at  the 
same  time  it  recognized  a  few  exceptions :  in  addition  to  the 
liability  of  the  pater  familias  for  the  delicts  of  persons  subject  to 
his  household  authority,  the  liability  of  innkeepers,  stablekeepers, 
and  shippers  for  damages  done  by  their  employees.  The  modern 
law  in  Germany  followed  in  general  the  Roman  rule,  and  accord- 
ingly did  not,  in  theory,  recognize  any  liability  for  faults  ("  Ver- 
schulden  ")  of  other  persons ;  which  rule  involved,  particularly,  a 
lessening  of  such  liability  for  household  servants.  However, 
legal  practice  clung  to  a  considerable  extent,  despite  the  statutes, 
to  the  stricter  native  view,  as  regarded  members  of  the  family 
and  household  servants ;  and  even  the  codes,  —  among  which 
the  Code  Civil  (§  1384)  alone  adopted  the  express  principle  of  the 
Germanic  law,  —  recognized  a  greatly  increased  number  of  ex- 
ceptions as  compared  with  the  Roman  law.  Of  particular  im- 
portance was  the  liability  of  the  ship-owner  under  the  commer- 
cial law  for  damages  done  by  the  crew,  and  that  of  freight  carriers 
for  faults  of  their  employees  and  agents.  Both  of  these  were 
raised  to  the  rank  of  general  law  by  the  General  Commercial  Code, 
and  exist  as  such  to-iay.  In  the  same  way,  under  the  imperial 
statute  regulating  the  liabilities  of  railroads,  the  operator  is  liable 
for  non-contractual  obligations  of  the  employees  in  cases  of  death 
or  physical  injury,  and  the  operator  of  other  similar  enterprises 
is  liable  for  the  employees  and  for  the  laborers  if  death  or  bodily 
injury  to  a  human  being  has  resulted  from  their  fault  in  perform- 
ing the  services  required  of  them.  The  Civil  Code  has  like- 
wise recognized,  in  entirely  general  terms,  a  liability  of  the  owner 
of  a  business  for  damage  wrongfully  done  by  his  employees.  At 
the  same  time,  however,  it  adopts  in  this  connection  the  view  of 
the  Roman  law  in  so  far  that  it  treats  this  liability  as  arising  only 
'  Brunner,  "Geseliiehte",  II,  552. 
580 


Chap.  X]  SPECIAL    FORMS   OF   OBLIGATIONS  [§  89 

in  case  of  some  fault  on  the  part  of  the  owner  of  the  business ;  on 
the  other  hand,  it  deviates  here  from  the  Roman  law  and  ap- 
proaches the  Germanic  in  imposing  upon  the  owner  the  burden 
of  proving  his  blamelessness  (§  831). 

(2)  Liability  for  animals.  —  Like  other  Indo-Germanic  peoples 
in  their  early  period  the  primitive  Germans  once  personified  the 
animal.  They  assumed  that  it,  although  "  a  dumb  thing  ",  "  a 
speechless  wight ",  could  commit  misdeeds.  Therefore  they 
punished  the  master  if  he  retained  an  animal  that  had  done  dam- 
age ;  for  he  thereby  made  himself  responsible  for  the  punishable 
deed  ("  Verbrechen  ",  crime)  of  aiding  a  wrong-doer,  possibly 
an  outlaw,  by  giving  it  food  and  shelter.  According  to  the  Ger- 
manic view,  —  which  agreed  with  the  old  Roman  "  noxse  datio  ", 
—  he  could  free  himself  from  criminal  responsibility  by  deliver- 
ing or  abandoning  the  animal  to  the  injured  person.  In  that 
case  the  latter  could  revenge  himself  upon  the  animal.  Out  of 
the  institute  of  private  revenge,  which  was  often  clothed  in 
ritualistic  form,  there  were  developed  in  the  IMiddle  Ages  under 
the  influence  of  Biblical  passages,  especially  in  France,  public 
punishments  of  animals  ("  Tierstrafen  ")  that  can  be  traced  down 
into  the  1800  s.  Misdeeds  of  animals  came  to  be  treated  as  results 
of  pure  misfortune  earlier  than  were  those  of  slaves.  In  the  case 
of  the  former  such  misdeeds  had  no  further  consequence  against 
the  owner,  even  when  they  were  not  abandoned,  than  an  obliga- 
tion to  pay  a  wergeld  and  bot,  or  a  fractional  part  of  the  bot. 
It  was  merely  required,  in  addition,  that  the  master  should  sup- 
port with  a  "  danger-oath  "  an  allegation  that  he  had  not  known 
the  dangerous  nature  of  the  anmal.  This  became  an  absolute 
liability  when  wild  animals  were  kept.  Abandonment  was  required 
only  in  the  case  of  the  worst  misdeeds,  such  as  homicide ;  because 
these  might  result  in  feud.  On  the  other  hand,  the  master,  by 
abandoning  the  animal,  could  still  free  himself  even  from  his  duty 
to  give  damages.^ 

This  possibility  of  freeing  one's  self  from  responsibility  by  aban- 
donment of  the  animal,  which  was  recognized  also  in  the  Roman 
law,  persisted  in  many  regions  even  after  the  Reception,  partic- 
ularly in  the  Saxon  law.  Of  the  codes,  the  Baden  Territorial 
Law  retained  it  in  quite  general  terms,  and  the  Saxon  Code  in 
case  no  fault  had  rested  upon  the  owner.  For  in  such  case  the 
Saxon  Code  and  the  Code  Civil  made  the  owner  of  the  animal 
liable  even  when  he  had  been  guilty  of  no  fault  in  his  oversight 
1  Ssp.,  II,  40,  §§  1-2. 
581 


§  89]  THE    LAW    OF   OBLIGATIONS  [BoOTC   III 

of  the  animal.  On  tho  other  hand,  the  Prussian  "  Landrecht  "  and 
the  Austrian  Code  aban(h)ned  the  standpoint  of  the  Roman  hiw 
in  favor  of  the  Germanic  principle  of  fault :  they  attributed  to 
the  owner  a  liability  only  in  case  of  his  own  fault.  Here  again  the 
present  Civil  Code  has  brought  the  native  legal  view  into  honor, 
and  has  applied  it  more  logically  than  did  any  earlier  legal  system. 
The  keeper  of  the  animal  is  made  liable  for  all  damages,  whether 
homicide,  bodily  injuries  to  persons,  or  injuries  to  things  (§§  833- 
834).  For, — this  is  the  idea  which  characterizes  the  modern 
law  as  distinguished  from  the  conception  of  antiquity,  —  whoever 
enjoys  the  benefits  of  property  shall  also  answer  for  all  dangers 
resulting  from  it.^ 

Special  rules  have  been  developed  as  regards  damage  done  by 
wild  game  (supra,  p.  278).  The  Civil  Code  also  contains  a  few 
general  rules  on  this  subject  (§  835). 

(3)  Damage  done  by  things.  —The  same  primitive  ideas  that 
made  a  master  liable  in  damages  for  acts  done  by  his  slaves  and 
animals  as  for  his  own  deeds,  also  made  him  answerable  for  mis- 
fortune caused  by  lifeless  things,  such  as  weapons,  that  belonged 
to  him ;  even  when  he  had  not  been  guilty  of  the  slightest  fault. 
These  injuries,  also,  were  regarded  as  involuntary  acts  ("Ungefahr- 
werke  ")  for  which  the  owner  was  liable ;  and  in  their  case,  too, 
release  from  the  obligation  to  give  damages  could  be  secured  by 
delivery  of  the  thing  to  the  injured  person.  In  the  course  of  the 
Middle  Ages  this  liability  for  things  ceased  to  be  important  in 
actual  legal  life.  The  heathen  religious  ideas  that  underlay  it, 
—  especially  the  idea  that  an  object  by  which,  for  example,  a 
human  being  had  been  killed  might  no  longer  be  used,  —  have 
persisted  as  superstitions  down  to  the  present  day." 

1  Unfortunately  this  provision  of  the  Civil  Code,  despite  its  native 
origin  and  its  intrinsic  justice,  has  been  sacrificed  to  the  opposition  directed 
against  it.  The  first  amendment  to  the  text  of  the  Code,  of  May  .'iOth, 
1908,  adds  to  §  833  the  following  :  "There  is  no  obligation  to  give  damages 
when  the  injury  is  caused  l)y  a  domestic  animal,  which  is  kept  for  use  in 
the  profession  or  trade  or  for  the  sui)port  of  its  keeper,  provided  either 
the  latter  has  observed  the  precautions  required  in  tlie  jniblic  interest 
in  his  oversight  of  the  animal  or  the  injury  would  have  resulted  notwith- 
standing th(^  exercise  of  such  care."  The  same  rule  was  even  earlier 
adopted  in  the  Swiss  Code  of  Obligation  Law  (§  5G). 

2  Brunner,  "Geschichte",  I  (2d  ed.),  219. 


582 


Chap.  XI] 


MAERIAGE 


[§90 


BOOK   IV.     FAMILY  LAW 


Chapter   XI 


MARRIAGE 


II. 


III. 
IV. 


90.  Introductory ;  the  Beginnings 
of  the  Germanic  Law  of  the 
Family. 

I.  The  Patriarchal  Fam- 
ily. The  household 
authority. 
Membership  of  the  Fam- 
ily. ' '  Greater- ' '  Fam- 
ily" and  "Lesser-" 
Family. 
Marriage. 

The  later  Development. 
§  91.    The  Contracting  of  Marriage. 
I.    The  old  Germanic  Law  of 
Marriage  Contract. 

(1)  Wife-abduction  and 

^vife-purchase. 

(A)  Wife-abduction. 

(B)  Wife-purchase. 

(2)  Formal  requisitesof  a 

marriage  consum- 
mated by  contract. 

(A)  The         original 

simple  act  of 
tlie  marriage 
contract. 

(B)  Betrothal      and 

nuptials. 

(a)  The       be- 

trothal. 

(b)  The    nup- 

tials. 

(C)  Religious  bene- 

diction. 
II.    The  Ecclesiastical  Law  of 
Marriage. 

(1)  The    Canon  law   of 

marriage. 

(2)  The  Protestant  law 

of  marriage. 
III.    The    Marriage    Law    of 
the  Modern  State. 
§  92.    The  Dissolution  of  Marriage. 
I.    Dissolution  by  Death. 
II.    Divorce. 

(1)  The  old  German  law 
of  divorce. 


(A)  Statutory       di- 

vorce result- 
ing from  out- 
lawry. 

(B)  Divorce  by  mu- 

tual agree- 
ment. 

(C)  Divorce   at  the 

wiU  of  one 
party. 

(2)  The       ecclesiastical 

law  of  divorce. 

(A)  Divorce   law  of 

the  Catholic 
Church. 

(B)  The   Protestant 

law  of  divorce. 

(3)  The      divorce      law 

of     the     modern 
state. 
§  93.    Personal   Legal   Relations   of 
the  Spouses. 
I.    The  Older  Law. 
II.    The  Modern  Law. 
§  94.    The  Law  of  Marital  Property  : 
(1)   Of  the  Folk-laws. 
I.    The  Point  of  Departure 
in  the   Historical    De- 
velopment. 
II.    Constitution       of       the 
Wife's  Estate. 

(1)  The  dovATy  or  mar- 

riage-portion. 

(2)  The  dower. 

(3)  The  morgive. 

III.  Legal    Relations   during 

the  Existence  of  Mar- 
riage. 

(1)  The  ordinary  form. 

(2)  Acquests. 

IV.  Legal     Relations      after 

Dissolution    of    Mar- 
riage. 

(1)  After  the  husband's 

death. 

(2)  After   the  death  of 

the  wife. 


583 


§90] 


FAMILY   LAW 


[Book  IV 


§  95.    The  Law  of  Marital  Property  : 
(2)  The  Medieval  Systems. 
I.    General       Development 
and    Common     Prin- 
ciples    of     Medieval 
Systems. 

(1)  Administrative  com- 

munity and  com- 
munity of  goods. 

(2)  The  "  mundium  "  of 

the  husband. 

(3)  ISIarriage  contracts. 
II.    Systems  of  Administra- 
tive Community. 

(1)  The  Ostphalian  law. 

(A)  Husband's     es- 

tate and  wife's 
estate. 

(B)  Legal    relations 

during  mar- 
riage. 

(C)  Legal    relations 

after  dissolu- 
tion of  mar- 
riage. 

(D)  Contractual  law 

of  marital 
property. 

(2)  Other  systems  of  ad- 

ministrative com- 
munity. 

(A)  Swiss  legal  sys- 

tems. 

(B)  The  Frisian  and 

Westphalian 
law. 
III.    Systems     of     Property 
Community. 
(1)  Limited  community 
of  goods. 

(A)  Legal    relations 

during  mar- 
riage. 

(B)  Legal     relations 

after  dissolu- 
tion of  mar- 
riage. 


(2)  The     general     com- 

munity of  goods. 

(A)  Legal    relations 

during  mar- 
riage. 

(B)  Legal    relations 

after  dissolu- 
tion of  mar- 
riage. 

(3)  Regulation  by  con- 

tract. 
96.   The  Law  of  Marital  Property : 
(3)  The  Modern  Law. 
I.    General       Development 
since  the  Reception. 
II.    Specific  Systems  of  Mar- 
ital Property. 

(1)  The    administrative 

community. 

(A)  Jurisdiction. 

(B)  Legal    relations 

during  mar- 
riage. 

(C)  Legal    relations 

after  dissolu- 
tion of  mar- 
riage. 

(2)  The     general     com- 

munity of  goods. 

(A)  Jurisdiction. 

(B)  Principles      ap- 

plicable    dur- 
■  ing  marriage. 

(C)  Relations   after 

dissolution  of 
marriage. 

(3)  The     limited     com- 

munity of  goods. 

(A)  The        acquest 

community. 

(B)  The  chattel 

community. 

(4)  The     dotal     system 

of     the     common 
law. 
III.    Establishment  of   Legal 
Uniformity. 


§  90.  Introductory :  the  Beginnings  of  the  Germanic  Law  of 
the  Family.'  (I)  The  Patriarchal  Family.  The  Household 
Authority.  —  In  view  of  the  present  results  of  Iiistorieal  research 
it  may  be  asserted  with  good  reason  that  the  primitive  Indo- 


•  Of  tlie  extraordinarily  al)undant  general  literature  on  the  origins  of 
the  family  and  of  marriage  we  may  cite:  Darf/un,  "Mutterrecht  und 
Raubehe",  No.  Ki  (1,S83)  of  (iicrkcs  "Untersuciiungen",  "Mutterrecht 
und  Vatcrrecht"  (1S')2)  ;  Bernhofl,  "  Fraucnleben  in  der  Vorzcsit",  (LS93) ; 
Grofssr,  "  Die  Formen  der  Familic  und  di(^  Formen  der  Wirtschaft",  (1S93) ; 
Kohler,  "Zur  Urgesehiehte  der  Elie",  in  Z.  vergl.  R.  W.,  XII  (1897),  197 
et  segf.,  and  numerous  other  essays  by  the  same  author  in  the  same  periodical ; 

584 


Chap.  XI]  MARRIAGE  [§  90 

Germanic  folk  already  lived  under  patriarchal  conditions;  and 
at  any  rate  as  regards  the  general  Germanic  and  the  German 
family  law,  there  can  scarcely  remain  any  doubt  that  their  his- 
torical point  of  departure  was  the  patriarchal  family  organiza- 
tion. It  prevailed  among  the  primitive  Germans  ("  Germanen  ") 
in  a  pure  and  absolute  form,  so  far  as  their  conditions  can  be 
traced  in  the  obscure  origins  of  history. 

During  the  dominance  of  the  patriarchal  system  the  family 
constituted  a  circle  of  persons  all  of  whom  were  absolutely  sub- 
jected to  the  power  of  the  house-lord,  the  patriarch,  and  were 
united  by  this  common  bond  of  subjection  into  a  social  group. 
LThey  participated  in  legal  life  solely  through  the  mediacy  of  the 
"  house-father  " ;  he  was  their  representative  outside  the  group. 
The  Germanic  languages  and  the  Latin  both  took  the  name  for 
this  power  of  the  house-lord  from  the  most  striking  symbol  of 
power,  the  hand,  and  named  it  therefore  "  Munt  "  (Old  High  G. 
"  munt  " ;  North  Germanic  and  Old  Norse  "  mund  ",  Latinized 
"  mundium  ").    For  the  primary  meaning  of  this  word  is  "  Hand  "  ; 

Wilulzky,  "Vorgeschiehte  des  Reehts",  part  I  (husband  and  wife)  and  II 
(parents  and  children,  etc.),  1903;  G.  E.  Howard,  "A  History  of  Matri- 
monial Institutions,  chiefly  in  England  and  the  United  States,  -nath  an 
introductory  Analysis  of  the  Literature  and  the  Theories  of  Primitive 
Marriage  and  the  Family"  (3  vols.,  1904),  with  elaborate  references; 
Wundl,  "Die  Entstehung  der  Exogamie",  in  Arch.  R.  W.  Philos.,  V 
(1912),  247-261,  400-414,  537-547;  Marianne  Weber,  op.  cit.  in  §  9,  supra 
(p.  61).  On  the  family  organizations  of  the  Indogermanic  races  see 
among  other  works:  Bernhoft,  "Uber  die  Grundlagen  der  Rechtsent^\ick- 
lung  bei  den  indogermanisclaen  Volkern",  in  Z.  vergl.  R.  W.,  II  (1880), 
253  ct  seq.,  "Zur  Gescliichte  des  europaischen  Familienrechts "  in  the 
same,  VIII  (1889),  1  et  seq.,  161  et  seq.,  "Die  Prinzipien  des  europaischen 
Familienrechts",  in  the  same,  IX  (1891),  392  et  seq.;  Leist,  "Graeco- 
italische  Rechtsgeschichte "  (1884),  "Altarisches  Jus  Gentium"  fl889), 
"Altarisches  Jus  civile"  (2  vols.,  1892,  1896);  Delbruck,  "DasMutter- 
recht  bei  den  Indogermanen",  in  Preuss.  J.  B.,  LXXIX  (1895),  14  et  seq.; 
Schrader,  "  Reallexikon,  Grundziige  einer  Kultur- und  Volkergesehichte 
Alteuropas"  (1901);  Ilirt,  "Die  Indogermanen"  (2  vols.,  1905,  1907); 
Schrader,  "  Sprachvergleichung  und  Urgeschichte,  linguistisch-historische 
Beitriige  zur  Erforschung  des  indogermanischen  Altertums"  (3d  ed.,  1907). 
In  addition  to  the  work  of  Weinhold,  cited  on  p.  61  supra,  there  should  be 
examined,  for  the  primitive  Germans:  Wackernagcl,  " Familienrecht  und 
Fainilienleben  der  Germanen",  in  Schreiber's  Taschenbuch,  V  (1846), 
259  et  seq.,  reprinted  in  his  "Kleinere  Sehriften",  I  (1872),  1-34;  Waitz, 
"Uber  die  Bedeutung  des  Mundium  im  deutschen  Recht",  in  K.  Preuss. 
Akad.  Wiss.,  Sitz.  Ber.  1886,  375  el  seq.,  reprinted  in  his  "  Abhandlungen 
zur  deutschen  Verfassungs-  und  Rechtsgeschichte"  (1896),  369  ct  seq.; 
Roeder,  " Di(>  FamiUe  bei  den  Angelsachsen"  (1899);  Bartsch,  "Die 
Rechtsstellung  der  Frau  als  Gattin  und  Mutter.  Gesehichtliche  Entwiek- 
lung  ihrer  personlichen  Stellung  im  Privatrecht  bis  ins  18.  Jahrhundert" 
(1903);  Boden,  "Mutterrecht  und  Ehe  im  altnordischen  Recht"  (1904); 
K.  Maurer,  "Zum  altnordischen  Ehereeht",  in  his  "Vorlesungen",  II 
(1908),  471  et  seq.;  E.  Mayer,  "Der  germanische  Uradel",  in  Z^.  R.  G., 
XXXII  (1911),  40-228,  172  el  seq. 

585 


§  90]  FAMILY    LAW  [BoOK   IV 

the  Germanic  "  ]\Iunt  "  corresponds,  etymologically  and  in  mean- 
ing, to  the  "  maniis  "  of  Roman  family  law.  "  INIundium  " 
was  originally  a  very  broad  conception,  under  which  there  seem 
to  have  been  classed,  in  accord  with  the  one-time  actual  extent 
of  house-hold  authority,  all  possible  relations  of  personal  depend- 
ence ;  and  which  points  backward  to  conditions  when  no  public 
authority  was  recognized  alongside  of  or  superior  to  the  authority 
of  the  family  heacL^Even  in  medieval  law,  the  meaning  of  the 
concept  still  cxtenaed  far  beyond  the  law  of  the  family,  embrac- 
ing, —  in  addition  to  the  house-lord's  authority  over  the  family 
members  dwelling  in  the  house,  and  the  servants,  —  the  relation 
of  "  a  lord  ('  Schutzhcrr  ')  to  his  liegeman  ('  Mundmann  ')  and 
to  his  serf,  of  jurisdiction  ('  Vogtei  ')  over  strangers,  and  over 
churches,  and  the  representation  of  minors  in  law  suits  in  so  far 
as  this  was  exceptionally  permitted."  ^  However,  this  conception, 
originally  unitary,  assumed  in  time  a  varying  character  in  the 
individual  cases  in  which  it  was  applied.  For  example,  the  mun- 
diuni  of  husband,  parents,  and  guardians,  which  rested  upon 
relations  of  kinship,  was  differentiated  as  an  independent  legal 
institute.  And  within  this  mundium  of  the  family  law  a  further 
division  took  place :  the  power  of  the  husband  over  his  wife,  of 
the  father  over  his  children,  of  the  guardian  over  his  ward,  were 
each  subjected  to  independent  legal  rules,  differing  unequally 
from  their  one-time  common  prototype.  The  original  character 
of  the  institute  was  preserved  in  its  purest  form  in  the  relation  of 
a  father  to  his  children ;  the  name  was  preserved,  in  the  end, 
almost  solely  in  the  law  of  guardianship  ("  Vormund  "  =  guar- 
dian;  "  ]\Iundel  "  =  ward;  "  mundtodt  "  =  entmiindigt  =  sub- 
ject to  guardianship).  Its  original  character  was  that  of  an  un- 
limited authority  of  the  mundium-holder  ("  Muntherr  ")  over 
the  persons  subjected  to  his  power.  At  an  early  day,  and  there- 
after with  ever  increasing  clearness,  there  were  grafted  upon  this 
original  concept  of  almost  unlimited  authority,  first  moral  and 
then  legal  restrictions,  which  recognized  a  duty,  in  addition  to  the 
right,  of  the  master.  And  thus  "  there  already  appears  in  our 
earliest  sources  of  information,  the  meaning  of  '  protection  ',  of 
'  peace.'  "  -  The  house-lord  became  a  lord-protector,  a  "  mund- 
poro  ",  "  foramundo  ",  "  mundoaldus,"  "  Muntwalt,"  of  the 
person  subject  to  his  authority ;  he  was  bound  to  exercise  such 
authority,  not  as  formerly  in  his  own  interest  alone,  but  equally 

>  Brunner,  "Grundziifje"  (5th  ed.),  221. 
»  Brunner,  "Geschichte",  I  (2d  ed.),  93. 

58G 


Chap.  XI]  MARRIAGE  [§  90 

in  their  interest.  With  this  step,  wife  and  children  ceased  to  be 
mere  things  subject  to  liis  control.  Nevertheless,  the  mundium 
of  the  house-lord,  even  in  this  mixed  form  of  right  and  duty  that 
was  characteristic  of  the  Middle  Ages,  long  continued  to  signify 
"  a  power  which  we,  according  to  our  present  views,  would  call 
one  of  public  law ;  "  ^  it  continued  to  embrace  a  field  into  which 
no  public  authority  penetrated.  For  the  state  only  the  house- 
lord  existed,  to  him  alone  its  commands  were  directed ;  he  alone 
long  continued  responsible  under  the  criminal  and  the  private 
law  for  everything  that  happened  within  his  house  and  through 
the  members  thereof  {supra,  pp.  579  et  seq. 

(II)  Membership  of  the  Family.  "  Greater-"  Family  and 
"  Lesser-"  Family.  -)r  The  Indo-Germanic  family  was  probably  a 
so-called  "  greater-"  ("  Gross- ")  family;  a  man's  descendants 
remained  together  so  long  as  their  common  "  truncal "  ("  Stamm-  ") " 
father,  or  common  male  ancestor  lived,  or  was  capable  of  exer- 
cising physically  and  mentally  his  household  authority.^  This 
Indo-Germanic  heartliKX)mmunity  united  "  in  one  community 
not  only  parents  and  children,  but  also  the  wives  of  sons,  with 
their  sons,  and  the  wives  and  descendants  of  the  latter."  ^  In  the 
greater-family  of  Old  Russia  and  in  the  Servian  "  Zadruga " 
this  primitive  family  organization  has  been  preserved  down  to 
the  present  day.  Among  most  of  the  Indo-Germanic  peoples, 
however,  the  greater-family  developed  into  the  looser  form  of  the 
sib  {supra,  pp.  114  et  seq.,  and  infra,  §  106)  ;  that  is,  into  a  group 
of  persons  who,  though  conscious  of  union  through  common 
descent  were  no  longer  bound  together  by  the  authority  of  their 
truncal  father,  but  constituted  an  association  ("  Genossenschaft  ") 
of  equal  family  heads  and  the  members  of  their  households  that 
far  exceeded  in  membership  the  "  greater-"  family.  But  the 
son,  when  he  married,  henceforth  ordinarily  lighted  his  own  hearth 
fire. /And  thus  there  existed  within  the  sib,  as  the  narrowest 
independent  social  group,  a  separate  ("  Sonder-  ")  or  "  lesser-" 
family  that  was  limited  to  two  generations  :  parents  and  children. 
Among  the  primitive  and  the  later  Germans  we  meet,  in  general, 
with  this  lesser-family  only ;  though  examples  in  which  married 
children  and  grandchildren  remained  living  in  the  parental  house- 
hold are  not  lacking,  they  are  relatively  rare.  Nevertheless,  in 
the  peasant  communities  of  collective  hand  common  in  the  Middle 

1  Huber,  "Sehw.  Privatrceht",  IV,  282. 

2  Schradcr,  " Sprachvergleiehung  iind  Urgeschichte "  (3d  ed.),  359. 
^  Grosse,  op.  cil.,  10. 

587 


§  90]  FAMILY    LAW  [BoOK   IV 

Ages,  which  have  persisted  in  some  locahties  down  to  the  present 
day,  reminiscences  were  preserved  of  the  original  greater-family. 
In  these  communities,  after  the  death  of  the  house-father,  the 
sons  and  their  issue  often  remained  united  tlirough  many  genera- 
tions as  an  association  {supra,  pp.  139  d  scq.).  As  contrasted  with 
the  associational  sib  and  the  community  of  collective  hand,  the 
lesser-family  preserved  the  element  of  authority  that  was  essen- 
tial to  the  primitive  greater-family.  It  was  the  circle  within 
which  the  household  mundium  of  the  house-lord  was  exercised, 
over  his  wife  and  children  as  well  as  over  the  servants. 
£;  (III)  Marriage.  — £The  primitive  patriarchal  system  did  not 
necessarily  involve  the  institution  of  marriage.  But  the  family 
of  the  primitive  Germans,  like  the  supposititious  family  organ- 
ization of  the  primitive  Indo-Germans,  rested  upon  marriage  from 
the  beginning.  ]\Iarriage,  however,  was  by  no  means  synony- 
mous with  monogamy.  On  the  contrary  marriage  acquired  a  spe- 
cial quality  distinguishing  it  from  other  sexual  unions  merely  from 
the  fact  that  wife  and  children,  notwithstanding  their  subjection 
to  the  unlimited  mundium  of  husband  and  father,  enjoyed  in 
relation  to  him  a  position  legally  more  secure  than  that  of  other 
women  with  whom  he  cohabited,  and  his  offspring  by  such.  IVIar- 
riage  was  regarded  as  the  legitimate  sexual  union.  The  "  mar- 
ried "  wife  ("  Ehefrau  ")  was  distinguished  from  other  wives 
("  Xebenfrauen  "),  concubines,  and  slaves  by  the  fact  that  only 
she  could  bear  him  children  of  "  full  birth  " ;  that  is,  above  all, 
give  her  husband  male  issue  who  continued  his  line  and  family, 
performed  the  obligations  of  the  blood-feud  and,  especially,  were 
able  to  offer  sacrifices  for  him  when  dead  and  thereby  care  for 
the  peace  of  his  soul.  It  was  perfectly  reconcilable  with  this 
religio-political  purpose  of  marriage,  however,  that  the  husband 
might,  in  case  his  first  wife  remained  childless,  or  for  other  rea- 
sons, acquire  a  second  wife,  or  a  third,  or  as  many  wives  as  his 
social,  economic,  and  political  associations  made  desirable  and 
possible  for  him.  \  Thus,  among  the  primitive  Germans,  although 
according  to  the  report  of  Tacitus  (which  was  certainly  in  this 
respect  accurate)  they  ordinarily  contented  themselves  with  one 
wife,^  a  plurality  of  wives  was  by  no  means  legally  impossible. 
Among  the  northern  Germanic  races  ("  Xordgermanen  ")  the 
prevalence  of  polygamy  long  continued  to  be  noteworthy  ;  among 
their  western  branches  it  was  still  practiced  even  in  Christian 
times,  although  only  by  the  richest  and  greatest  men,  especially 
.  ^  "Germania",  c.  18. 
588 


Chap.  XI]  MARRIAGE  [§  90 

in  royal  houses,  —  for  example  in  those  of  Merovingians  and 
Carolingians.  Moreover,  in  addition  to  unions  with  several  wives 
of  equal  rights  there  also  existed  among  the  primitive  Germans  a 
system  of  legal  concubinage  {infra,  §§  91,  99). 

It  was  essential  to  the  patriarchal  marriage  that  the  wife  who 
lived  with  a  man,  either  voluntarily  or  because  compelled  to  do 
so,  left  her  own  household  community  forever,  and  abandoned  all 
relation  of  kinship  with  its  members ;  and  also  that  the  children 
she  bore  her  husband  thereby  entered  into  relations  of  kinship 
with  the  father  and  the  father's  family  only,  and  not  with  the 
house  of  the  mother.  Already  in  the  Indo-Germanic  period  the 
family  was  therefore  completely  agnatic,  as  is  particularly  evi- 
denced in  the  terminology  of  kinship.  The  same  must  be  assumed 
to  be  true  of  the  primitive  Germans.  The  assumption  that  they 
lived  originally  in  a  condition  of  mother-law  must  be  rejected. 
The  expression  "  mother-right  "  ("  Mutterrecht  ")  has  been  used 
since  the  epoch-making  work  of  Bachofen  ^  to  indicate  conditions 
of  very  different  character,  as  reported  both  in  the  accounts  of 
ancient  writers  and  in  accounts  of  primitive  peoples  of  the  present 
time.  Even  if  one  understand  by  mother-law  simply  a  form  of 
family  organization  actually  prevailing  among  a  number  of 
peoples,  —  notably  those  of  a  low  stage  of  culture,  — in  which 
children  are  not  counted  with  the  father  and  the  paternal  kin- 
dred, but  with  the  mother  and  the  maternal  kindred,  and  there- 
fore possess  rights  of  inheritance  only  in  relation  to  the  latter, 
such  a  condition  would  by  no  means  constitute,  as  some  were  for 
a  time  inclined  to  believe,  a  necessary  transitional  stage  in  the 
social  development  of  every  people.  Neither  does  it  enjoy  an 
exclusive  authority,  under  all  circumstances,  w^here  it  exists. 
Still  less  does  it  involve,  in  itself,  any  peculiar  legal  position  of  the 
mother,  or  even  a  supremacy  of  mothers  or  of  women  ("  Mut- 
ter-", "  Frauenherrschaft  ") ;  mother-right  is  therefore  not  the 
equivalent  of  matriarchy.  At  all  events,  in  the  present  light  of 
historical  research  we  must  start  with  the  assumption  that  the 
Indo-Germanic  peoples,  from  the  beginning,  never  knew  condi- 
tions of  mother-right ;  nor  the  primitive  Germans,  either.  It  is 
true  that  several  scholars  (von  Amira,  Dargun,  Ficker,  Heusler, 
Opet,  E.  Mayer)  have  believed  they  had  discovered  traces  of 
original  mother-right  in  the  primary  monuments  of  Germanic  law  ; 
and  upon  this  basis  it  has  been  contended  that  primitive  Germanic 

1  "Das  Mutterrecht,  eine  Untersuchung  iiber  die  Gynaikratie  der  alten 
Welt  nach  ihrer  religiosen  und  rechtlichen  Natur"  (1861). 

589 


§90]  FAMILY   LAW  [Rook   IV 

law  was  one  of  mother-right.  Inasmuch  as  the  arguments  for 
this  view  (championed  with  most  assurance  by  Ficker)  that 
were  derived  from  tlie  hiw  of  inheritance,  from  the  hiw  of  the 
marital  community  of  goods,  and  from  the  legal  status  of  illegiti- 
mate children  have  been  convincingly  disposed  of,  it  now  rests, 
at  best,  upon  interpretations  of  the  institute  known  as  the  "avun- 
culate."  Tacitus  reports  in  a  celebrated  passage  that  the  rela- 
tion between  nephews  and  uncles  on  the  mother's  side  was  quite 
as  close  as  that  between  son  and  father,  and  that  some  persons, 
in  giving  hostages,  treated  the  former  relationship  as  the  stronger 
security.^  Now,  it  is  true  that  this  powerful  position  of  the 
maternal  uncle  is  a  characteristic  feature  of  a  society  under  mother- 
right.  In  order,  therefore,  to  reconcile  the  unlikeness  between 
the  Germanic  avunculate  and  the  patriarchy  which  elsewhere 
])revailed  among  Indo-Germans,  the  hyi)()thcsis  has  been  advanced 
that  we  have  here  a  survival  of  pre-Indo-Germanic  society,  — 
which  lived  under  mother-right,  as  is  provable  from  reports  of  the 
Lycians,  Locrians,  Etruscans,  Cantabrians,  the  Balearians,  and 
Picts.^  But  it  is  not  necessary  to  resort  to  this  explanation.  For 
the  special  honor  of  the  maternal  uncle  may  have  been  merely  a 
consecpience  of  the  fact  that  the  maternal  kindred  came,  in  time, 
to  be  considered  along  with  the  paternal,  who  were  at  first  exclu- 
sively regarded ;  in  other  words,  a  consequence  of  the  fact  that 
the  family's  purely  agnatic  structure  was  replaced  by  a  cognatic 
organization.  In  this  appearance  of  the  idea  of  cognatic  relation- 
ship, which  transformed  in  the  same  manner  the  family  and  the 
sib  {infra,  §§  lOG-107),  the  maternal  uncle  naturally  played  the 
most  important  role :  he  was  the  link  between  the  families  of  the 
father  and  the  mother,-  and  he  was  primarily  the  person  upon 
whom  was  incumbent,  as  the  representative  of  the  maternal  sib,^ 
the  protection  of  the  wife  as  against  her  husband. 

(IV)  The  Later  Development.  —  The  beginnings  of  the  Ger- 
manic and  of  the  German  family-law  agree  exactly  with  those 
we  find  among  other  Indo-Germanic  peoples,  and  like  the  latter 
they  can  be  derived  and  explained  with  a  great  degree  of  proba- 
bility from  the  manners  and  law  of  an  inferential  primitive  Indo- 

'  "Gcrmania",  c  20.  See  also  Riclschrl,  ar{.  "Avunculat"  in  Hoop's 
"Reall(!xil<oa",  1  (1011),  .')1();    E.  Mayer,  op.  cit.  supra,  p.  585. 

^  Bernhoft,  " Slaat  and  Uecht  dor  roinist-hen  Konifjszeit"  (1882), 
191  et  srq.;  Schradcr,  "  Realloxikon",  228,  500;  "  Sprachvergleichung 
unci  UrKosfhichU'"  (3d  od.),  308. 

^Schradcr,  " Reallexikou",  228;  also  cf.  Brunner,  "Geschichte",  I 
(2d  ed.),  128. 

590 


Chap.  XI]  MARRIAGE  [§  91 

Germanic  race.  In  its  further  development,  also,  from  the  earliest 
times  down  to  the  present  day,  German  family-law  has  similarly 
followed  the  broad  line  marked  by  the  general  development  of 
European  civilization.  True,  it  must  not  be  forgotten  that  the 
family-law  of  a  race  is  related  with  especial  closeness  to  its  par- 
ticular mental  genius ;  indeed  it  is  precisely  in  this  field  that  the 
law  always  finds  its  most  important  complement  in  manners  and 
customs,  and  cannot  be  understood  without  attention  to  these. 
Despite  this  fact,  however,  the  influence  that  has  been  exercised 
by  the  general  development  of  economic  and  intellectual  culture 
has  been  far  stronger,  in  the  long  run,  than  the  influence  of  national 
peculiarities.  The  former  influence  w^as  greatly  strengthened  in 
the' family-law  by  the  fact  that  the  most  important  part  of  this, 
the  law  of  marriage,  was  withheld  by  the  Church  for  many  cen- 
turies from  national  legal  development.  The  result  was  that  an 
international  ecclesiastical  law  took  the  place  of  a  national  secular 
law.  In  this  medieval  ecclesiastical  law  of  marriage  and  also  in 
the  modern  secular  law  that  in  turn  displaced  it,  as  well  as  in  cer- 
tain other  portions  of  the  family-law  that  remained  more  or  less 
completely  unaffected  by  the  Church's  influence,  —  for  example 
the  law  of  the  marital  community  of  goods  and  the  law  of  guar- 
dianship, —  certain  general  tendencies  have  prevailed  among  all 
nations  of  the  Germanic-Romanistic  circle  of  civilization,  and  have 
set  identical  ends  to  their  legal  development,  however  variant  in 
detail  the  ways  in  which  those  ends  were  pursued  and  realized. 
At  the  same  time,  consciously  or  unconsciously,  the  development 
of  all  institutions  of  the  family-law  has  undoubtedly  been  con- 
stantly directed  toward  a  curtailment  of  the  original  patriarchal 
power  of  the  husband,  an  equalization  of  husband  and  wife  before 
the  law,  the  legal  security  of  children  and  other  persons  under 
mundium,  and  a  reincorporation  of  the  family-law  in  the  secular 
law  of  the  state. 

§91.  The  Contracting  of  Marriage.^  —  Although  different 
varieties  of  sexual  union  were  once  not  only  actually  practiced 

'  Friedberg,  "Das  Recht  dcr  Eheschliessung  in  seiner  geschiehtlichen 
Entwicklung"  (1865);  Sohm,  "Das  Recht  der  Ehesohliessung  aus  dem 
deutschen  iind  kanonisehen  Recht  geschichtheh  entwickelt"  (1875); 
Friedberg,  "Verlobung  und  Trauung"  (1876) ;  Sohiu,  "Training  und  Ver- 
lobung"  (1876).  Also  Brunner,  in  the  Jenaer  Lit.  Z.  (1876),  art.  439; 
V.  Wt/ss,  "Die  EheschUessung  in  ihrer  gesehiehtliehen  Entwickhmg  nach 
den  Reehten  der  Schweiz",  in  Z.  sehweiz.  R.,  XX  (1877),  65-186  :  Ilabicht, 
"Die  altdeutsehe  Verlohung  in  ihrem  Verhaltnis  zu  dem  Mundium  und 
der  Eheschliessung"  (1879);  A'.  Lehmann,  "Verlohung  und  llochzeit 
nach  den  nordgermanisehen  Reehten  dcs  friiheren  Mittelalters"  (1882); 
Brunner,  "Zu  Lex  Salica,  tit.  44,  'De  rcipus'",  in  K.  Preuss.  Akad.  Wiss., 

591 


§  91]  FAMILY    LAW  [BoOK   IV 

but  also  recognized  by  law,  nevertheless  marriage,  as  that  form 
of  sexual  community  which  in^•olve(^  the  most  far-reaching  legal 
consequences,  was  always  distinguished  by  a  special  form  observed 
in  its  creation,  on  the  strength  of  which  alone  it  was  conceded  its 
privileged  rank  of  full  legitimacy.  The  Germanic  law,  like  the 
legal  systems  of  other  Indo-Germanic  peoples,  developed  special 
forms  for  the  creation  of  marriage ;  forms  which  were,  of  course, 
adjusted  to  the  general  principles  regulating  the  conclusion  of 
juristic  acts.  For  even  among  the  primitive  Germans  the  con- 
traction of  marriage  was  regarded  as  a  juristic  act,  although  one 
that  was  consummated  from  the  earliest  times  in  an  especially 
formal  and  solemn  manner,  because  of  its  far-reaching  consequences 
and  its  importance  in  religious  and  political  life.  This  primitive 
and  purely  secular  law  of  marriage  contract,  however,  was  later 
displaced  by  an  ecclesiastical  law  of  marriage,  which  as  a  part 
of  the  Canon  law  in  the  form  finally  given  that  by  papal  codifi- 
cation attained  universal  authority  over  the  entire  Christian  pop- 
ulation of  Europe,  until  it  was  divided  after  the  Reformation 

Sitz.  Ber.  1894,  1289-1297;  Martin  Wolff,  "Zur  Gesehichte  der  Witwen- 
ehe  im  altdeutschen  Recht",  in  Inst.  ost.  G.  F.,  XVII  (1896),  3G9-388; 
Gothein,  "Beitriige  zur  Gesehichte  der  Familie  ira  Gebiet  des  alaman- 
nischen  und  friinkisehen  Rechts"  (1897) ;  Hermann,  "Ziir  Gesehichte  des 
Brautkaufs  bei  den  indogermanisehen  Volkern",  in  the  scientific  supple- 
ment to  the  31st  "Programm"  of  the  Hansa  Schule  at  Bergedorf  (1904); 
Hazeltine,  "Zur  Gescliiehte  der  p]hesehliessung  nach  angelsjichsischem 
Recht",  in  "Festgabe  fiir  Hiibler"  (1905),  1-38;  Brandileone,  "Saggi 
suUa  storia  della  celebrazione  del  matrimonio  in  Italia"  (1906);  Opel, 
"Zum  Brautkauf  nach  altalamannischein  Recht",  in  "Festgabe  fiir 
Hanel"  (1907),  177-213.  The  argument  of  a  work  by  Ficker  on  betrothal 
and  espousal  in  the  1100  s  and  1200  s,  worked  out  by  him  in  188t>-87, 
but  never  published,  has  been  made  known  by  i\  VoUelini  in  Jung,  "Julius 
Ficker  (182(5-1902),  ein  Beitrag  zur  deutsehcn  Golehrtengeschichte" 
(1907),  514-619;  Kosller,  "Muntgewalt  und  Ehebewilligung  in  ihrem 
Verhiiltnis  zu  einander  nach  friiiikisehom  und  nach  lang()})anlis('hem 
Recht"  in  Z2.  R.  G.,  XXIX  (1908),  75-135;  Roc(^cr,  "Zur  Deutung  der 
angelsilehsisehen  Glossierungen  von  '  paranympha'  ('  pronul>a'),  ein  Beitrag 
zur  Kenntnis  des  angelsilehsisehen  Iloehzeitsrituells",  in  K.  Gesel.  Wiss., 
Gottingen,  "Nachriehten"  (1909),  14-21;  Lcic/i<,  " Troctingi  e  paraninfi 
nel  matrimonio  langobardo",  in  Atti  del  Reale  Istituto  Veneto,  1909-1910, 
69  et  scq.,  851-865 ;  Opel,  "  Brauttradition  und  Konsensgcspriich  in  mittel- 
alterliehen  Trauungsritualen,  ein  licit  rag  zur  Gesehichte  des  deutschea 
Eheschliessungsreehts"  (1910),  cf.  Kdstirr  in  Z=.  R.  G.,  XXXI  (1910), 
617-620;  Lcnz,  "VAn  Beitrag  zuni  friihkirehliehen  Khesehliessungsrecht" 
in  Deut.  Z.  Kirehenr.,  XX,  (1910),  272-296;  Rndrck,  "B(>itriige  zur 
(jesehiehte  des  Eherechts  deuts(!lier  Fiirsten  bis  zur  Durchfiihrung  des 
Tridentinums",  in  Meislrr's  Munst(>riselie  Beitriige  (new  series,  XXVI, 
1910);  Koebner,  "Die  Eheauffassung  im  spilteren  Mittelalter",  in  Arch. 
Kult.  G.,  IX  (1911),  136-198,  279-318;  Opet,  "Die  Anordnung  der 
Eheschliessungspublizitiit  im  Capitulare  Vernense",  in  "  F^estschrift  fiir 
O.  Gierke",  (1911),  245-254;  Schmitl-Fnlkcnherg,  "Fine  Studie  uber  das 
Verlobnis  in  England  mit  einer  Einfiihrung  iiber  die  englische  Rechts- 
entwicklung  im  allgemeinen"  (1911). 

592 


Chap.  XI]  MARRIAGE  [§  91 

into  special  systems  for  different  religious  confessions  or  Terri- 
torial churches.  It  is  only  in  the  modern  period  that  the  State 
has  again  assumed  control  of  the  regulation  of  the  marriage  con- 
tract. 

(I)  The  old  Germanic  law  of  Marriage  Contract.  —  (1)  Wife- 
abduction  and  tcifc-purcha^e.  —  (A)  Wife-abduction  ("Frauen- 
raub  ",  wife-"  rape  ").  There  can  be  no  doubt  that,  just  as  among 
the  people  of  India,  Greeks,  Romans,  Slavs,  and  many  other  non- 
Indo-Germanic  races,  so  also  among  the  primitive  Germans  the 
abduction  of  women  had  at  one  time  the  effect  of  creating  the 
marriage  relation.  Indubitable  evidences  exist  of  this  fact.  Like 
the  Indian  and  Grecian  epics,  the  sagas  and  poems  of  the  primitive 
Germans  ascribe  to  their  most  celebrated  heroes  the  abduction 
of  women  by  violence ;  and  that  this  poetry  rested  upon  a  basis 
of  reality,  —  although  indeed  one  which  had  for  the  most  part 
already  disappeared,  —  is  shown  by  historical  examples,  among 
which  none  is  more  celebrated  than  that  of  Arminius,  who  by 
abduction  won  in  marriage  Thusnelda,  the  intended  wife  of  an- 
other.^ These  reports  are  confirmed  by  the  legal  sources :  in 
some  of  the  Germanic  folk-laws  there  still  occur  provisions  accord- 
ing to  which  the  '  raptor  '  retained  as  wife  a  woman  he  had  ab- 
ducted against  the  will  of  her  kindred  from  whom  he  captured 
her;  or  at  least  retained  her  when  she  herself  acquiesced  in  the 
abduction  or  thereafter  chose  to  remain  with  him.^  It  can  be 
proved  that  the  abduction  marriage  w^as  still  known  among  the 
North  Germans  in  the  age  of  the  Vikings,  and  in  the  peculiar 
statutory  wife-abduction  of  northern  legal  sources  it  continued 
even  much  later.  Reminders  of  this  one-time  institution  of  bride- 
abduction  have  been  preserved  also  in  many  marriage  customs 
among  Germanic  and  Slavic  races,  widespread  even  to-day, 
which  considerably  increase  the  weight  of  other  evidences. 
Thus,  among  rural  populations  the  wooing  of  the  bride  fre- 
quently still  has  an  apparently  warlike  character.  Something 
like  a  simulated  investment  of  the  bride's  house  is  undertaken  by 
the  friends  of  the  bridegroom  ;  often,  the  bride  conceals  herself 
after  the  marriage  ceremony  and  must  be  captured,  in  which 
connection  feigned  battles  take  place  among  the  boys  and  girls ; 
throughout  Germany,  moreover,  there  is  known  as  a  marriage 
game  a  custom  in  accord  with  which  the  bride  is  abducted  by  the 

'  Brunner,  "Geschichte",  I  (2d  ed.),  95. 

'  Brunner,  op.  cit.  Cf.  Fehr,  "Hammnrapi  und  das  salische  Recht, 
eine  Rechtsvergleichung "  (1910),  77. 

593 


§91]  FAMILY   LAW  [BoOK  IV 

youth  of  the  village.^  It  is  consistent  with  all  this  that  the 
marriage  ceremony  ("  Trauung  ",  "  Hochzeit  ")  was  known  in 
the  East  and  West  Germanic  laws  as  "  bride-flight  "  ("  Braut- 
lauf  ",  "  Brautlauft  ",  from  "  laufen  ",  "  currere  ",  to  run) ;  these 
names  reflect  the  fact  that  it  was  the  bringing  home  of  the  bride 
that  constituted  the  most  essential  element  in  the  marriage 
contract. 

There  is  a  theory,  —  wholly  without  basis,  notwithstanding  that 
it  is  championed  by  some  Germanists  (Dargun,  Heusler), — that 
this  rape-marriage  was  "the  normal  marriage  of  primitive  law" ;  ^ 
that  the  rape  of  women  was  originally  the  only  valid  form  in  which 
marriage  could  be  consummated  among  the  primitive  Germans, 
and  that  only  in  time  was  there  developed  from  it  a  peaceful, 
contractual  mode  in  which  marriage  could  be  established. 
Schroder  justly  remarks  ^  that  "  marriage  contracted  between 
the  children  of  neighbors  with  the  knowledge  and  consent  of  their 
families  must  have  been  the  starting  point  in  the  case  of  every 
race  not  wholly  bestial."  In  the  case  of  the  primitive  Germans 
the  further  fact  is  especially  important  that  among  them,  as 
among  many  other  primitive  peoples,  so-called  endogamous  mar- 
riages seem  to  have  been  the  rule ;  that  is,  marriages  between 
members  of  the  same  sib.  The  sib,  however,  was  a  frith-union 
(supra-,  p.  114),  and  excluded  as  between  its  members  blood-feuds, 
hostilities,  and  acts  of  violence.  In  the  case  of  such  marriages, 
therefore,  there  must  always  have  been  a  peaceful  form  of  con- 
tract. Just  as  in  the  old  law  of  India  marriage  by  violent  abduc- 
tion of  women  was  ordinarily  permitted  only  to  the  members  of 
the  military  nobility,  so  among  the  primitive  Germans  rape- 
marriage  was  doubtless  never  the  rule  but  always  an  exce})tion, 
and  could  have  been  especially  common  only  when  the  question 
was  one  of  winning  in  marriage  the  daughters  of  another  sib,  of  an 
alien  line  ("  Stamm  ",  family),  or  of  a  conquered  race. 

(B)  Wife-purchase  ("  Frauenkauf  "). — Tlie  original  form  of 
marriage  contract  among  the  primitive  Germans  was  wife-pur- 
chase. We  meet  with  it  in  the  oldest  legal  sources  as  the  pre- 
vailing, and  the  only  legal,  form  in  which  marriage  could  be  con- 
summated. In  this  respect,  also,  the  oldest  Germanic  law  agrees 
exactly  with  conditions  that  are  attested  with  equal  clearness 
among  most  of  the  other  Indo-Germanic  races  in  their  earliest 

>  Dnrgun,  "Muttcrrceht  iind  Raubohe",  134, 
2  Schroder,  "Lehrbuch"  (oth  cd.),  70. 
»  Op.  cit. 

594 


Chap.  XIJ  MARRIAGE  [§91 

antiquity,  and  which  have  been  preserved  among  some  of  such 
races  down  to  the  present  day ;  for  example  in  India,  where  even 
today  wife-purchase  is  widely  prevalent  in  many  regions  as  a  form 
of  marriage  among  the  ordinary  people,^  and  among  the  Rus- 
sians, where  marriage  is  still,  in  the  mind  of  the  rural  folk  and  in 
reality,  a  matter  of  purchase,  and  is  treated  in  the  most  matter- 
of-fact  way  as  a  question  of  goods  and  prices.^  Again,  among  the 
early  Germans  the  consummation  of  marriage  was  a  juristic  act, 
which  was  concluded  between  the  bridegroom  and  his  kindred 
on  one  side,  and  the  father  or  guardian  who  held  mundium  over 
the  bride  and  her  kindred  on  the  other  side;  and  in  which  the 
bride  herself  participated  solely  as  the  object  of  the  sale  and  not 
as  a  contracting  party.  Hence  the  Frankish  folk-laws  still  spoke 
of  "uxorem  emere",  "feminam  vendere  ",  "pretium  emptionis  ", 
"  pretium  nuptiale  ",  "  puella  empta";  and  the  Scandinavian 
law-books  of  "  kaupa  ",  "  byggja  konu  "  (to  buy  a  wife,  to  bar- 
gain). In  Germany  the  expression  "  kaufen  "  (to  buy),  for  "to 
marry  ",  long  survived  in  many  regions  the  custom  itself,  and  has 
been  preserved  down  to  modern  times,  indeed  even  to  the  present 
day,  as  for  example  in  Holland  "  where  popular  speech  still 
designates  the  bride  as  '  purchased  '  ('  verkocht  ',  '  verkauft  ')-"^ 
It  is  true,  as  already  mentioned  (p.  592),  that  older  legal  phrase- 
ology employed  the  expressions  "  Kauf  ",  "  kaufen  "  (sale,  to 
buy)  in  a  far  wider  sense  than  that  which  is  usual  to-day,  applying 
them  to  every  bilateral  contract ;  to  every  contract  which  in 
Amira's  words  can  be  called  in  any  sense  a  "  trade  "  ("  Handel- 
scliaft  ").  Relying  upon  this  circumstance,  Maurer  ^  and  Amira  " 
deny  to  the  marriage  of  Germanic  law  the  character  of  a  purchase 
in  the  present  sense  of  that  word.  But  despite  this  pertinent 
definition  of  the  term,  it  can  scarcely  be  doubted  that  the  primitive 
Germans,  when  they  chose  their  wives  by  contract,  saw  in  the 
transaction  by  which  they  so  procured  them  nothing  more  than 
an  actual  purchase ;  that  in  their  eyes  there  was  no  difference  in 
the  transaction,  as  such,  whether  they  purchased  a  woman  to  be 
a  wife  or  a  servant.  This  conclusion  is  not  inconsistent  with  the 
fact  that  the  purchase  of  a  wife  was  distinguished  from  all  other 
purchases  both  by  its  object  —  a  free  woman,  and  by  its  pur- 

^  Jnlhi,  "Recht  imd  Sitto,  Grundriss  der  indoarischen  Philologie  und 
Altertuinskunde",  Vol.  2,  Iloft  S  (1896),  52. 

^  Schradcr,  " Spraehvergleiehung  und  Urgesehiehte "  (3d  ed.),  323. 

3  Bninncr,  op.  cil.,  97. 

*  "Vorlesungen",  II,  506  et  seq. 

«  "Recht",  111. 

595 


§  91]  FAMILY    LAW  [BoOK   IV 

pose  —  the  creation  of  a  mimdium  that  protected  the  entire  free- 
dom of  the  woman.  Nor  is  it  inconsistent  with  the  fact  that  the 
will  of  the  bride  herself  may  also  have  come  to  be  considered,  at 
least  in  fact,  at  an  early  date.  Although  bride-purchase  was 
therefore  distinguished  by  the  special  agreements  that  accom- 
panied it,  and  which  were  lacking  in  other  contract  forms  for  the 
purchases  of  women,  there  was  nevertheless  involved  in  it,  as  in 
every  contract  of  sale,  an  exchange  of  goods  and  a  purchase  price. 
The  purchase  price  was  called  dower  ("  Wittum  ",  "  Widum  " ; 
Old  High  G.  "widemo",  "widem";  A.  Saxon  "  weotuma  " ; 
Burgundian  "  wittimon  ")  or  hire-money  ("  Mietgeld  "  ;  Lom- 
bard "meta";  "Miete",  "Lohn",— hire,  wage).  In  Latin  it 
was  known  as  "pretium  nuptiale"  ;  "pretium  emptionis",  "dos." 
To  be  sure,  fixed  statutory  tariffs  for  the  dower  ("  Wittum  ") 
were  declared  in  the  folk-laws,  at  least  in  the  Frankish  period, 
but  these  probably  had  no  absolute,  but  only  a  relative,  signifi- 
cance ;  possibly  that  of  a  minimum  limit.  On  the  contrary  free 
agreement  was  probably  the  original  and  ordinary  form.  In- 
deed we  are  frequently  told,  for  example  in  the  Scandinavian 
sagas,  of  a  bargaining  concerning  the  sum.  The  creation  of  the 
marital  community  for  life  by  a  transaction  of  sale,  —  it  nowhere 
appears  in  more  repulsive  form  than  in  some  of  the  Anglo  Saxon 
laws,^  —  has  to  our  feelings  a  cold-blooded  and  brutal  character. 
But  that  can  be  no  reason  for  doubting  that  the  actual  nature  of 
this  form  of  marriage  was  a  sale ;  especially  when  one  remarks 
how  widespread  this  view  has  been  and  still  is  among  races  of  the 
past  and  of  the  present  day.  Even  now  it  cannot  be  regarded 
as  extinct  in  many  social  strata  of  the  German  folk. 

(2)  Formal  requisites  of  a  marriage  consummated  by  contract. — 
(A)  The  original  simple  act  of  the  marriage  contract. — 
Since  Sohm's  investigations  it  has  been  certain  that  marriages  con- 
summated contractually  were  always  controlled  by  the  general 
rules  of  contract  law.  Indeed  the  study  of  the  forms  in  which 
marriage  was  consummated  has  served  to  make  clear  the  general 
principles  and  development  of  the  Germanic-German  law  of  con- 
tract. Marriage  by  contract,  like  every  other  legal  transaction, 
and  particularly  every  sale,  was  originally  consummated  as  a 
non-credit  transaction.  This  spot  transaction  was  composed,  in- 
deed, of  two  different  elements  ;   but  it  combined  these,  exactly  as 

^  Aethelberht  (601-004),  en.  77,  .31;  Liehermann,  "Die  Gesetze  der 
Angelsachsen",  I  (1903),  7  et  seq.,  5.  Von  Amira,  "Recht",  112,  detects  in 
these  rules  principles  that  have  been  further  developed  in  the  later  law. 

596 


Chap.  XI]  MARRIAGE  [§  91 

did  the  oldest  conveyances  of  land,  into  an  act  single  in  time  and 
in  law.  When  the  offer  of  marriage,  which  ordinarily  preceded 
the  contract,  had  been  accepted,  and  when  an  agreement  had  been 
reached  concerning  the  conditions  —  particularly  the  price  and 
the  time  —  of  the  nuptials,  then  '  the  legal  ceremony,  upon 
whose  publicity  great  weight  was  laid,  was  consummated  witliin 
the  circle  of  blood  "  friends."  For  marriage  was  an  affair  of  the 
sib ;  it  was  a  marriage  under  the  family-law.^  This  legal  act 
was  so  executed  that  the  performances  of  the  two  parties  fol- 
lowed alternatively :  the  bridegroom  counted  out  into  the  hand 
of  him  who  held  mundium  over  the  bride,  for  her  sib,  the  price 
agreed  upon,  and  he  who  held  the  mundium  gave  ("  tradieren  ", 
"  trauen  ",  to  deliver)  the  bride  to  the  bridegroom.  Thereupon 
followed  the  leading  of  the  bride  home  to  the  house  of  the  bride- 
groom, —  the  bride-flight,  —  where  cohabitation  ("  Beilager  ") 
was  consummated  in  a  public  manner ;  and  with  this  the  marriage 
ceremony  was  concluded,  and  the  existence  of  the  marriage  begun. 
The  father,  brother,  or  the  next  male  relative  of  the  sword-kin 
was  empowered  to  betroth  and  to  give  the  bride.  If  she  were  a 
widow  it  was  the  nearest  male  connection  of  her  first  husband 
in  conjunction  with  her  blood-friends ;  whose  place  was  taken,  in 
case  of  their  refusal,  by  the  kindred  of  the  widow.  The  betrother 
("  Verlober  ")  received  for  his  participation  a  marriage  gift  from 
the  bridegroom. 

(B)  Betrotil\l  AND  NUPTIALS. — This  simple  marriage  act,  which 
we  must  assume  for  the  Germanic  period,  became  divided  in  the 
Frankish  period  into  two  acts,  the  two  elements  theoretically  in- 
volved in  it  being  separated  in  time,  —  exactly  as  was  the  case  with 
the  Sala  and  the  investiture  in  conveyances  of  land  (supra,  pp.  241 
et  seq.). 

(a)  The  betrothal  ("Verlobung"). — The  first  act  essential  to 
the  consummation  of  the  marriage,  which  corresponded  to  the 
"  Sala  ",  was  the  betrothal  ("  desponsatio  "  ;  A.  Saxon  "  bewed- 
dung";  Old  Norse  "  foestning  ").  This  was  the  contract  of 
alienation,  which  continued  for  a  time  to  be  concluded  between 
the  bridegroom  and  the  bride's  sib,  represented  by  the  holder  of 
mundium  over  her.  To  be  sure,  under  the  influence  of  Chris- 
tianity increasing  respect  was  paid  to  the  bride's  will,  but  no 
importance  was  at  first  attributed  to  this  legally.  In  accord- 
ance with  the  general  rules  of  the  law  of  contracts,  this  contract 
of  alienation  could  originally  be  concluded  only  as  a  real-contract 
1  Brunner,  Z\  R.  G.,  XVI  (1895),  103. 

597 


§91]  FAMILY    LAW  [BoOK   IV 

Uupra,  pp.  503  et  seq.).  That  is,  the  bridegroom  was  bound  to 
perform  first  the  act  incumbent  upon  him,  —  the  payment  of  the 
purchase  price ;  he  thereby  obhgated  tlie  other  contracting  party 
to  the  counter  performance,  which  after  the  appearance  of  credit 
transactions  was  postponed  to  a  hiter  time.  However,  just  as 
the  payment  of  handsel,  symboHc  of  the  full  purchase  price  and 
in  place  of  complete  pre-performance,  came  in  time  to  be  consid- 
ered sufficient  in  a  sale  to  obligate  the  other  party  to  counter 
performance,  so  in  the  betrothal  men  were  contented  if  the  bride- 
groom delivered  an  earnest  ("  arrha  "),  a  payment  on  the  purchase 
price.  Among  the  Franks  this  symbolic  mundium-money 
("  Mundschatz  ")  amounted  to  a  solidus  (=10  denarii)  and  one 
denarius ;  in  the  betrothal  of  a  widow,  —  in  which  connection 
it  was  known  as  a  "  Reipus  "  (ring-money),^  —  three  solidi  and 
one  denarius.  The  payment  of  this  slight  sum  was  preserved  for 
centuries  in  regions  of  the  French  law  as  a  marriage  custom.  At 
the  marriage  of  Louis  XVI  and  Marie  Antoinette  there  still 
figured  thirteen  denarii,  —  which,  indeed,  are  reported  to  be  still 
in  use  in  some  parts  of  France ;  ^  and  it  is  reported  of  the  marriage 
of  the  Count  of  Paris,  celebrated  in  1864,  that  the  Count,  to  con- 
clude the  same,  handed  to  his  young  wife  a  few  gold  and  silver 
coins.^ 

Although  the  payment  of  the  earnest  might  preserve  to  the 
betrothal  the  character  of  a  real  contract  it  nevertheless  became 
possible  to  conclude  it  in  the  form  of  a  wed-contract ;  that  is,  to 
consummate  it  as  a  formal,  instead  of  a  real,  contract.  In  this 
case  the  bridegroom  obligated  himself  to  a  later  payment  of  the 
dower  ("  Wittum  ")  by  handing  to  the  mumlium-holder  of  the 
bride  a  "  wadia  " ;  whereupon,  —  since  the  staff  did  not  have 
the  effect  of  binding  the  other  party,  — a  "  wadia  "  was  likewise 
handed  over  by  the  guardian,  in  order  to  assure  the  bride's  future 
delivery.  Moreover,  there  might  easily  occur  here,  as  in  all 
cases,  a  confusion  of  earnest-money  ("  arrha  ")  and  staff 
("wadia"),  of  real  and  formal  contract  (supra,  pp.  501,  506 
et  seq.). 

The  nature  of  the  betrothal  was  altered  in  still  another  respect. 
It  became  usual  to  regard  the  mundium  over  the  bride,  rather 
than  \\vv  f)wn  person,  as  the  object  of  the  sale  which  the  bride- 

'  (lirrkc  is  of  another  opinion,  "Schuld  unci  Haftung",  359  et  seq.,  in 
particular  .302,  n.  10.3. 

2  Vinllet,  419;  Brissnud,  1015. 

'  In  a  lottor  of  tlio  fhoniist  A.  W.  v.  Hnfmnnn,  in  "Berichte  der 
deutschen  chemischen  Gesellschaft ",  XXXV  (1902),  78. 

598 


Chap.  XI]  MARRIAGE  [§  91 

groom  must  acquire  with  the  purchase  price.  This  explains  the 
fact  that  among  the  Lombards  the  purchase  price  was  also  known 
as  "  mundius  ",  among  the  Frisians  as  "  muntsket  "  ("  Munt- 
schatz  "),  and  among  the  North  Germans  as  "  mundr."  At  the 
same  time,  this  change  of  view  must  have  had  rather  theoretical 
than  practical  importance  so  long  as  the  mundium  continued  to 
involve  extensive  powers  of  control. 

On  the  other  hand  it  was  of  the  greatest  practical  importance 
that  the  purchase  money  came  in  time  to  inure  to  the  bride  her- 
self instead  of  her  sib.  From  the  mundium-holder's  custom  of 
delivering  to  her  the  whole  or  a  part  of  the  "  Wittum  "  there  was 
developed  a  legal  claim  of  the  bride  to  that  amount  of  property. 
By  this  change,  however,  the  meaning  and  purpose  of  the  per- 
formance incumbent  upon  the  bridegroom  was  also  altered  :  he 
no  longer  gave  the  sum  agreed  upon  in  order  to  purchase  the  bride 
from  her  sib,  but  in  order  to  make  her  a  gift  ("  Zuwendung  ") 
which  was  intended  to  serve  her  as  a  maintenance-portion  ("  Leib- 
gedinge  "),  as  support  for  her  when  a  widow.  The  "  pretium  " 
became  a  "  dos  "  ;  the  "  puella  empta  "  became  a  "  puella  dotata." 
With  this  change  the  giving  of  the  dower  ("  Wittum  "),  once 
essential  under  the  Germanic  law  to  the  validity  of  the  marriage 
{infra,  §94),  completely  lost  its  importance  from  the  1100  s 
onward. 

To  these  changes  was  added  the  following.  As  already  men- 
tioned, the  bride  was  originally  simply  the  object  of  the  betrothal 
contract,  and  it  marked  an  advance  when  regard  was  also  paid  to 
her  will  (in  the  beginning  at  least  actually,  and  later  legally  as 
well),  and  her  consent  required.  But  when  the  legal  position  of 
women  began  gradually  to  improve,  this  purely  passive  partici- 
pation of  the  bride  ceased,  and  the  roles  of  the  parties  were  re- 
versed. "  Whereas  the  father  (or  guardian)  of  the  bride  had 
theretofore  concluded  the  betrothal  contract,  though  with  the 
consent  of  the  daughter,  she  now  betrothed  herself,  a  mere  right 
of  consent,  that  is  a  veto  upon  the  contraction  of  the  marriage, 
being  conceded  to  her  father  (or  guardian)  as  a  remnant  of  his 
old  right  of  betrothal."  ^  The  father  or  guardian  thenceforth 
appeared  as  the  betrother  only  in  the  case  of  a  bride  under  mun- 
dium. The  betrothal  thus  became  a  contract  concluded  between 
bridegroom  and  bride ;  they  were  the  contract  parties  who  made 
the  mutual  promises  of  marriage.  But  in  this  form  also,  of  course, 
the  betrothal  continued  sul)ject  to  the  existing  rules  of  contract 
'  Sohm,  "Ehesehliessung",  52. 
599 


§  91]  FAMILY    LAW  [BoOK   IV 

law.  Afterward  as  before,  it  was  concluded  either  as  a  weakened 
real  contract  by  the  delivery  of  earnest-money  by  the  bridegroom, 
or  as  a  formal  (a  wed-)  contract  by  the  mutual  delivery  of  staffs ; 
in  which  connection,  however,  as  already  mentioned,  staff  and 
handsel  might  easily  be  confused  with  one  another.  Following 
Roman-Italian  usage,  a  ring  was  the  customary  handsel  in  Ger- 
many ("  subarrhatio  cum  anulo  ").  It  was  entirely  consistent 
with  the  nature  of  the  "  arrha  "  that  only  one  ring  was  originally 
given,  and  this  by  the  bridegroom  to  the  bride ;  for  the  ring,  the 
betrothal  ring,  was  the  last  remnant  of  the  old  purchase-money ; 
with  it  the  bridegroom  betrothed  the  bride,  and  the  bride,  by 
putting  it  on  her  finger,  obligated  herself  to  marital  fidelity. 
When  the  custom  of  exchanging  rings  later  developed,  the  mutual 
gift  and  acceptance  of  the  rings  replaced  the  mutual  delivery  of 
staffs,  and  represented  the  formal  act  of  a  wed-contract.  How- 
ever, as  in  the  case  of  other  contracts  so  in  that  of  betrothal  the 
weaker  forms  of  oath  or  hand-clasp  also  sufficed  for  its  consum- 
mation. 

(b)  The  nuptials  ("  Trauung ").  —  The  betrothal  was  fol- 
lowed, when  the  day  agreed  upon  arrived,  by  the  delivery  of  the 
bride  from  her  mundium-holder  to  the  bridegroom.  This  was  the 
"  traditio  puellae "  (A,  Saxon  "  gifta "),  which,  as  already 
remarked,  exactly  corresponded  in  legal  significance  and  outward 
form  to  the  investiture  in  a  conveyance  of  land.  It  was  per- 
formed as  a  public  and  solemn  act  in  the  bride's  home  in  the  pres- 
ence of  the  kindred  of  both  parties.  It  was  accompanied  by  the 
marriage  feast.  The  legal  formalities  observed  in  this  connec- 
tion were  long  the  same  as  those  that  once  accompanied  the 
original  simple  act  by  which  marriage  was  consummated.  They 
corresponded,  in  part,  to  the  usages  customary  in  adoption. 
Along  with  the  bride  there  were  delivered  to  the  bridegroom  cer- 
tain symbols  of  espousal — preferably  a  spear,  as  the  token  of  the 
mundium  that  passed  therewith  to  him  for  the  future ;  the  hair 
of  the  bride,  which  she  had  until  then  worn  loose,  was  done  up, 
her  head  was  veiled,  a  mantle  was  thrown  about  her,  and  so  on ; 
the  bridegroom  grasped  her  hand,^  and  probably  stepped  upon 
her  foot,  or  set  her  upon  his  knee  as  if  she  were  an  adopted  child ; 
frequently,  also,  he  delivered  to  her  a  present.  The  final  act, 
afterward  as  before,  was  the  festive  leading  of  the  bride  home  to 
the  bridegroom's  house,  where,  at  least  in  the  North,  a  common 
cup  once  more  rejoiced  the  entire  marriage  company.  Thereafter 
'  Cf.  V.  Amira,  " Handgebarden "  (supra,  p.  11),  241  ct  seq.,  244. 

600    • 


Chap.  XI]  MARRIAGE  [§  91 

came  the  occupancy  of  the  nuptial-bed  in  the  presence  of  wit- 
nesses, frequently  by  torch-light ;  a  custom  which  remained  usual 
throughout  the  Middle  Ages,  persisting  longest  in  the  case 
of  princely  marriages,  but  also  among  the  laboring  classes  down 
into  the  1600  s.  The  Law  Books  of  the  zenith  of  the  Middle 
Ages  emphasized  more  frequently  and  with  greater  stress  than 
did  the  Frankish  sources  the  importance  of  marital  cohabitation 
as  the  act  most  decisive  for  the  consummation  of  the  marriage's 
legal  consequences.  The  beginning  of  the  marital  community  of 
goods,  in  particular,  was  very  often  made  dependent  upon  it. 
This  moment  was  expressed  by  phrases  of  the  most  varied  char- 
acter ("when  the  woman  gets  into  the  man's  bed";  "when  the 
cover  is  drawn  over  them  " ;  "  when  the  woman  disrobes  before 
the  man's  bed  ",  etc.).^ 

The  consequences  of  dividing  the  marriage  ceremony  into  two 
acts,  the  betrothal  and  the  nuptials,  was  that  neither  of  these 
alone  sufficed  to  establish  the  marriage  relation.  Of  course  the 
betrothal,  like  all  other  contracts,  produced  certain  legal  effects. 
It  obligated  the  guardian  to  perform  the  marriage  ceremony  at 
the  time  agreed  upon,  and  it  obligated  the  bridegroom  to  take 
home  the  bride  and  to  pay  the  purchase  money  whose  payment 
was  temporarily  respited.  Whoever  failed  to  perform  these  obli- 
gations was  punished  for  breach  of  the  betrothal  contract ;  the 
guardian  was  ordinarily  obliged  to  give  back  the  "  Wittum  "  in 
case  this  had  already  been  paid,  and  to  pay  an  equal  amount  as 
damages ;  the  bridegroom  lost  the  "  Wittum."  In  addition  to 
this,  the  betrothal  created  a  personal  obligation  of  fidelity 
on  the  part  of  the  woman ;  so  long  as  she  was  a  mere  object  of 
sale,  this  could  have  been  created  by  giving  her  a  present,  and  later 
it  was  created  by  the  handsel  that  was  given  her.  Under  many 
legal  systems  an  affianced  woman  who  was  guilty  of  sexual 
intercourse  with  another  man  might  be  punished  as  an  adul- 
teress. Her  betrothed,  as  well  as  her  mundium-holder,  had  an 
action  against  a  third  person  who  seduced  her,  with  or  without  her 
consent.  But  the  marriage  relation  was  first  created  by  the 
espousals,  which,  however,  could  be  consummated  only  after 
betrothal. 

That  betrothal  and  nuptials  were  equally  necessary  precon- 
ditionals  to  the  creation  of  a  legally  valid  marriage,  and  continued 
to  constitute  one  act  legally,  is  shown  by  the  generally  prevalent 

'  Cf.  Fehr,  "Die  Rechtsstellung  dor  Frau  und  der  Kinder  in  den  Weis- 
tiimorn"  (1912),  60  et  seq. 

601 


§  91]  FAMILY    LAW  [BoOK   IV 

custom  of  performing  in  connection  with  each  the  formahties 
that  were  usual  in  the  other.  So  for  example,  the  Lombard  law, 
in  the  case  of  betrothal,  when  the  "  meta  "  had  been  paid  or 
wagered  (given  as  a  wed),  the  bride  was  delivered  by  her  mundium- 
holdcr  symbolically  ("  per  baculum  "),  but  then  immediately 
handed  back  by  the  bridegroom.  It  was  more  common  to  repeat 
the  formalities  of  betrothal  in  the  nuptials :  the  bridegroom  once 
more  paid  the  simulated  purchase  price  (the  earnest-money)  and 
the  parties  once  .more  declared  their  will  to  marry,  just  as  they 
had  already  done  in  the  betrothal.  In  particular,  a  ring  was 
delivered  or  rings  again  exchanged  in  the  nuptials :  with  this 
step  the  engagement  ring  became  a  marriage  ring  ("  mahelfinger- 
lin  ").  This  is  also  the  cxjilanation  of  the  fact  that  expressions 
were  employed  to  designate  the  married  couple  that  were  de- 
rived from  the  betrothal,  —  "  Ehegespons  ",  "  promessi  sposi  ", 
"epouser",  "to  spouse",  "to  wed",  "  vermahlen  "  (that  is, 
to  promise,  to  betroth;  from  "mahal"  =  speech,  address,  mod- 
ern "  Gemahl  "). 

When,  at  the  zenith  of  the  Middle  Ages,  self-betrothal  by  the 
bride  took  the  place  of  betrothal  by  her  guardian,  the  nuptial  "giv- 
ing" in  the  sense  of  an  investiture  had  outlived  its  usefulness.  The 
"traditio  puellse"  was  transformed  into  a  self-espousal  ("Selbst- 
trauung")  of  the  bride,  into  a  nuitual  giving  by  the  bridal  couple. 
To  be  sure,  the  influence  of  the  older  viewpoint  of  the  law  con-  I 
tinned  to  be  shown  in  a  peculiar  manner.  For  that  form  of 
self-espousal  which  first  became  predominant  was  "a  'giving 
through  a  third  person  who  was  freely  chosen  by  the  bride,  or  as 
the  case  might  be  by  the  bridal  coui)le."  ^  This  third  person 
thus  became  a  Salmann  or  fiduciary  ("  Treuhiinder ")  to  whom 
the  bride  gave  herself  "in  trust"  ("auf  Treue ") ;  that  is, 
"  merely  to  the  end  that  he  should  deliver  her  to  her  betrothed."  ^ 
Who  the  third  person  might  be  was  immaterial.  He  might  be  a 
near  relative  but  that  was  not  necessary ;,  any  trustworthy  man, 
preferably  one  of  advanced  age  but  always  a  layman,  was  asked 
to  assume  this  role.  The  essential  thing  was  that  he  was  not, 
like  the  guardian,  chosen  to  cooperate  because  of  any  right  of 
kinship,  but  merely  by  virtue  of  a  commission  ;  he  was  no  "  born  " 
("  geborener  ")  })ut  a  freely  "  chosen  "  ("  gekorener  ")  guardian. 
He  consummated  the  nuptials  by  certain  words  with  which  he 
pronounced  the  marriage  benediction  ;  they  were  no  longer  com- 
pleted by  a  marriage  act  })ut  by  a  marriage  formula.  The  transi- 
'  Sohm,  "Eheschliessung",  67.  *  Sohm,  op.  cit.,  68. 

602 


Chap.  XI]  MARRIAGE  [§  91 

tion  from  the  old  to  the  new  usage  can  be  traced  in  certain  remark- 
able records  of  legal  and  cultural  history.  In  a  Swabian  nuptial- 
formula  of  the  1100  s  it  is  still  the  true,  the  "  born  ",  guardian 
who  as  the  nearest  male  relative  gives  {"  antwortet  ")  the 
bride  to  the  bridegroom  together  with  the  symbols  of  marriage, 
—  namely  seven  gloves  (the  "wadia"  given  by  the  bridegroom), 
a  sword,  a  golden  ring,  a  penny,  mantle,  and  hat,  pronouncing  at 
the  same  time  the  words :  "  wa  ich  iu  bevilhe  mine  muntadele 
(Miindel)  ziweren  triwun  und  ze  iueren  gnaden,  und  bit  iuch 
durch  die  triwe  als  ich  si  iu  bevilhe,  dar  ir  ir  rehte  voget  sit,  und 
ir  genadich  voget  sit,  und  daz  ir  nit  palemunt  (treuloser  \^ormund) 
ne  werdent."  ("Because  I  give  over  to  you  my  ward  to  your  faith 
and  mercy  and  beg  you  by  the  faith  by  which  I  entrust  her  to  you 
that  you  will  be  her  right  and  kindly  keeper  and  that  you  will  not 
become  faithless  to  your  trust.")  On  the.  other  hand,  in  a  nup- 
tial-formula of  Cologne  of  the  1300  s  there  is  talk  merely  of  a 
certain  "somebody"  who  consummates  the  marriage  simply 
with  the  following  words :  "  Ich  bevelen  uch  z6  houff  up  Frentzer 
Erden  myt  Goulde  ind  Gesteynen,  Silver  ind  Gould,  beyde  na 
Francken  Wyse  ind  Sassen  ee,  dat  urre  geyn  den  anderen  layssen  en 
sail  umb  Leyff  noch  umb  Leyt,  noch  um  geyn  Dynck  dat  Gott  an 
eme  geschaffen  hait  odir  geschaffen  mach  layssen  werden."  ^ 
("  I  enjoin  you,  on  Frankish  soil  with  gold  and  precious  stones, 
with  silver  and  gold,  both  according  to  Frankish  manner  and  Saxon 
law,  that  neither  of  you  shall  leave  the  other  for  love  or  woe  nor 
for  any  other  thing  that  God  has  created  in  you  or  may  create  in 
you.  ) 

(C)  Relig  ious  benediction. — Inasmuch  as  marriage  was  every- 
where in  Europe  regarded,  in  the  first  half  of  the  ^Middle  Ages, 
as  a  secular  juristic  act,  —  in  accordance  with  the  old  view  of  the 
Germanic  races,  and  in  agreement  also  with  the  viewpoint  of  the 
Roman  law,  —  there  was  no  place  in  such  act  for  participation 
by  ecclesiastical  agents.  But  at  this  most  important  moment 
in  life  the  Germanic  peoples,  from  the  earliest  times,  felt  the  need 
of  a  religious  consecration.  In  the  heathen  period  the  mind  of 
the  gods  was  sounded  in  advance  by  lot;  in  the  North  the  be- 
trothal was  consecrated  by  Thor's  hammer,  or  the  young  wife 
was  led  three  times  around  the  hearth  upon  which  a  fire  had 
been  lighted  for  the  gods; — and  so  on.  After  the  adoption 
of  Christianity  these  heathen  usages  were  displaced  by  the  bene- 
diction of  the  young  people  pronounced  by  a  priest  after  the 
1  Sohm,  op.  cit.,  67,  69,  320  f. 
603 


§  91]  FAMILY    LAW  [BoOK   IV 

espousal.  Frankish  capitularies  expressly  prescribe  this  in  ac- 
cordance with  the  Church's  precepts.  Inasmuch  as  the  nuptials, 
particularly  the  lay-  (the  Salmann)  form  above  discussed,  were 
preferably  performed  in  the  Middle  Ages  before  the  church 
door  ("ante  valvas  ecdesiiie  "),  —  before  the  "bridal-door" 
(the  main  door  of  the  north  side  being,  for  this  reason,  frequently 
so  known),  —  in  order  to  assure  to  it  the  greatest  publicity  pos- 
sible, the  newly  married  couple  could  immediately  thereafter 
enter  the  church  with  the  marriage  party  to  hear  the  marriage 
mass  and  receive,  thereafter,  the  Church's  blessing.  Often, 
however,  the  benediction  took  place  only  on  the  day  following  the 
marriage,  on  the  morning  after  cohabitation ;  for  example, 
Giinther  went  to  the  mass  with  Brunhild,  Siegfried  with  Kriem- 
hild,  onl}-  after  the  bridal  night.  But  these  usages  did  not  alter 
in  the  least  the  purely  secular  character  of  the  marriage.  Whether 
or  not  the  priest  was  present,  as  was  natural,  before  the  church 
door  during  the  marriage  ceremony,  at  any  rate  his  ecclesiastical 
function  began  only  after  the  conclusion  of  the  legal  ceremony. 

(II)  The  Ecclesiastical  Law  of  Marriage.  —  (1)  The  Canon  law 
of  marriage.  —  From  the  1100  s  onward,  the  secular  law  was  dis- 
placed, in  Germany  as  elsewhere,  by  the  marriage  law  of  the 
Church.  True,  the  formal  side  of  the  marriage  law  had  from 
the  earliest  times  been  less  important  to  the  Church  than  its  sub- 
stantive aspect,  —  that  is,  the  question  of  any  impediment  to 
marriage,  above  all  one  resulting  from  kinship.  Relying  upon 
the  Bible,  it  assumed  in  this  respect  a  far  stricter  attitude  than 
did  the  Germanic  law.  For  though  the  latter  emphasized  from 
the  beginning  the  equality  of  status,  —  which,  on  the  other  hand, 
was  immaterial  from  the  Church's  point  of  view,  —  it  originally 
permitted  marriages  between  kindred  of  all  degrees,  save  parents 
and  children,  permitting  in  the  Christian  period,  after  marriages 
between  brothers  and  sisters,  which  were  once  permitted,  had 
ceased  to  be  practiced,  marriages  with  brothers-  and  sisters-in- 
law,  and  even  marriage  with  one's  step-mother.  In  the  same 
way  the  Church  began  an  obstinate  struggle  against  the  divorce 
law  of  the  Germanic  races  (infra,  §  92).  It  succeeded  in  estab- 
lishing its  contentions  in  both  matters,  for  it  found  a  way  to  with- 
draw from  the  lay  courts  all  suits  involving  the  personal  rights  of 
the  marriage  relation,  and  to  establish  for  these,  as  ecclesiastical 
matters,  an  exclusive  jurisdiction  in  the  ecclesiastical  courts.  It 
followed  as  a  matter  of  course  that  the  rules  of  the  ecclesias- 
tical law  thenceforth  became  controlling  in  answering  the  ques- 

C04 


Chap.  XI]  MARRIAGE  [§  91 

tion  whether  a  marriage  formally  valid  had  been  created, 
since  that  question  was  decided  in  the  ecclesiastical  courts.  Next, 
the  Church  demanded  the  participation  of  ecclesiastics  in  the 
marriage  ceremony.  A  simple  means  existed  by  which  to  estab- 
lish such  cooperation.  It  was  only  necessary  to  convert  the 
presence  of  the  priest  at  the  marriage,  which  was  already  cus- 
tomaryji  into  a  participation  essential  to  the  legality  of  the  nup- 
tials, by  demanding  that  no  layman  should  in  future  conduct 
the  marriage  ceremony  as  a  "  chosen  "  guardian,  but  that  this 
should  be  done  by  the  priest  who  afterwards  pronounced  the 
Church's  blessing.  In  other  words  the  Church  forbade  marriage 
by  laymen  and  commanded  marriage  by  ecclesiastics.  In  fact 
secular  marriages  thereafter  disappeared  from  legal  life.  The 
priest  took  the  place  of  the  old  guardian.  But  notwithstanding 
that  the  nuptials  were  now  consummated  by  a  priest,  and  had 
thereby  been  transformed  into  an  act  subject  to  the  Canon  law, 
the  ceremony  was  not,  —  as  was,  for  example,  confirmation  ("  Fir- 
mung  "),  —  a  priestly  act,  resting  upon  the  priestly  power  of 
consecration.  INIarriage,  according  to  the  dogma  of  the  Catholic 
Church,  was  a  sacrament ;  the  dispenser  of  the  sacrament,  how- 
ever, was  not  the  priest  but  the  marriage  couple  themselves.  The 
nuptials  still  remained  a  secular  ceremony ;  the  ecclesiastical 
ceremony  continued  to  lie  merely  in  the  pronunciation  of  the 
Church's  blessing  upon  a  marriage  already  concluded. 

The  displacement  of  the  lay  guardian  by  the  priest  in  the 
giving  ("  Trauung  ")  of  the  bride  was  not,  however,  the  sole 
result  of  subjecting  marriage  to  the  rules  of  the  Canon  law.  This 
had  the  further  effect  that  the  formal  requisites  of  secular  law, 
particularly  the  old  division  of  the  ceremony  into  betrothal  and 
nuptials,  were  displaced  by  the  totally  different  ecclesiastical  law 
of  marriage.  This  ecclesiastical  marriage  law,  —  which  can 
here  be  only  briefly  referred  to  beyond  a  reference  to  the  literature 
of  the  Canon  law,^  —  adopted  from  the  beginning  the  rule  of  the 
classic  Roman  law  of  marriage  :  "  nudus  consensus  facit  nuptias  "  ; 
though,  to  be  sure,  there  was  added  to  this,  as  an  entirely  new 
conception,  the  doctrine  of  the  sacramental  nature  of  marriage. 
As  a  result  of  regarding  the  meeting  of  the  parties'  wills  as  the 
constitutive  element  in  marriage,  without  declaring  any  form 

'  In  addition  to  the  discussion  of  this  matter  in  Sohm's  "Reeht  der 
Eheschliessung",  compare  among  other  works  the  elaborate  exposition 
in  Scherer,  "Handbuch  des  Kirchenrechts",  II  (1891,  2d  ed.,  1898), 
§§  109  et  scq.,  with  abundant  references. 

605 


§01]  FAMILY    LAW  [BoOK   IV 

whatever  to  be  legally  necessary  thereto,  —  not  even  the  cere- 
mony prescribed  by  the  Church,  —  the  duality  of  betrothal  and 
nuptials  in  Germanic  law  was  so  far  paralleled  that  the  distinc- 
tion between  "  sponsalia  de  futuro  "  ("  accipiam  te  uxorem  ", 
or  "  maritum  "),  corresponding  to  the  betrothal,  and  "  sponsalia 
de  pnesenti  "  ("  accipio  te  "),  —  the  former  involving  a  decla- 
ration of  will  directed  to  the  future,  the  latter  one  directed  to  the 
present,  —  vras  elevated  by  Pope  Alexander  III  to  universal 
law.  However,  just  as  the  importance  of  the  betrothal  had  al- 
ready come  to  be  greatly  lessened  in  the  Germanic  law,  so  that  it 
became  usual  to  repeat  its  formalities  in  the  nuptials,  so  under 
the  classic  Canon  law  only  the  "  desponsatio  de  prtesenti  "  suf- 
ficed, of  itself,  to  create  the  marriage;  although  the"  desponsatio 
de  futuro  "  could  be  transformed  into  a  marriage  by  the  consum- 
mative  act  of  "  copula  carnalis."  The  Church  retained  these 
views.  Even  the  great  dangers  and  evils  that  resulted  from  the 
possibility  of  clandestine  marriages,  —  particularly  the  frequent 
occurrence  of  bigamous  relations,  —  although  they  did  induce 
her,  probably  following  the  French  example,  to  introduce  at  the 
Lateran  Council  of  1215  the  publication  of  bans,  and  repeatedly 
to  insist  more  sharply  upon  the  celebration  of  marriages  "  in 
facie  ecclesise  "  (that  is  before  priests  and  witnesses), — -could 
not  induce  her  to  abandon  the  principle  of  the  power  of  consensus 
to  create  the  marriage.  The  Church  continued  to  require  no  legal 
form  for  that  contract  which,  above  all  others,  is  in  need  of  defi- 
nite forms.  No  wonder  that  the  Canon  law  of  marriage  thereby 
became,  as  has  been  aptly  said,  "  a  maze  of  flighty  fancies  and 
misapplied  logic."  ^ 

In  order  to  minimize  these  evils,  the  Council  of  Trent  under- 
took in  its  celebrated  decree  "  Tametsi  "  a  reformation  of  the 
Canon  law  of  marriage  which,  in  the  main,  ended  its  development. 
Thereafter  as  before  it  permitted  marriage  to  originate  in  the 
declaration  of  will  on  the  part  of  the  bridal  couple,  but  required 
for  this  declaration  of  will  one  absolute  element;  it  vtiist  be  made 
in  the  presence  of  a  priest  and  two  witnesses.  Owing  to  this  rule 
it  became  thenceforth  impossible  to  transform  informal  "  spon- 
salia de  futuro  "  into  marriages  by  "  copula  carnalis."  But  at 
the  same  time  the  Council  thereby  renounced  performance  of 
the  marriage  ceremony  by  ecclesiastics,  and  so  the  nuptials  in 
toto.  The  priest  became  a  mere  witness  whose  presence  was 
required  (in  an  extreme  case,  indeed,  only  passively)  in  order  to 
*  Pollock  and  MaUland,  "History",  II,  387. 
606 


Chap.  XI]  MARRIAGE  [§  91" 

solemnize  by  his  mere  presence  the  marriage  actually  concluded 
b}^  the  bridal  couple  through  a  formal  "  desponsatio  de  prsesenti."  ^ 
The  role  that  had  fallen  to  the  priest  as  successor  of  the  old  lay 
guardian  was  thus  again  taken  from  him :  his  words  no  longer 
had  consecrative  effect ;  they  no  longer  conveyed  the  bride,  but 
merely  evidenced  the  act  of  giving  ("  Traditionshandlung  ") 
performed  by  the  bridal  pair  themselves.  In  so  far  as  the  Triden- 
tine  law  regarded  the  marriage  as  resulting,  not  from  a  ceremony 
in  the  church  but  from  a  secular  juristic  act  of  the  bridal  couple, 
its  position  was  consistent,  therefore,  with  the  old  national  views 
of  the  Germanic  racesT]  On  the  other  hand,  in  making  essential 
only  one  act,  namely  the  formal  consensual  declaration  of  mar- 
riage, it  definitively  abandoned  those  views,  thus  rounding  out 
the  development  earlier  begun.  The  Tridentine  marriage  law 
became  effective  only  in  parishes  where  the  decrees  of  the  Council 
were  published,  but  the  legal  uncertainty  that  resulted  from  this 
in  Germany  has  recently  been  removed  by  the  papal  bull  "  Pro- 
vida  "  of  January  18,  1906,  which  has  subjected  all  Catholic 
marriages  in  Germany  to  the  decree  "  Tametsi."  Finally,  the 
decree  "  Ne  temere  "  of  August  2,  1907,  effected  a  transformation 
of  the  decree  "  Tametsi  ",  —  one,  moreover,  which  is  consistent 
with  the  tendency  of  the  most  recent  German  civil  law  of  mar- 
riage, —  by  providing  (especially)  that  the  priest  must  be  volun- 
tarily sought  and  must  voluntarily  officiate. 

(2)  The  Protestant  law  of  marriage.  —  The  evangelical  law  of 
marriage  maintained  down  into  the  1700  s  the  viewpoint  of  the 
medieval  marriage  law  of  the  church  to  the  extent  that  it  rejected 
the  doctrine  of  the  sacramental  character  of  marriage  ;  but,  on  the 
other  hand,  it  also  regarded  marriage  as  originating  in  a  declara- 
tion of  will  by  the  bridal  couple.  Unlike  the  Council  of  Trent, 
however,  Luther  and  his  followers  attempted  to  do  away  with 
the  evils  resulting  from  distinctions  between  betrothals  by  treat- 
ing only  the  conditional  "  sponsalia  de  futuro  "  as  true  betrothals 
(still  permitting  these,  however,  to  become  marriages  by  "  co- 
pula carnalis  "),  while  on  the  other  hand  declaring  all  public 
betrothals,  —  that  is,  unconditional  betrothals  consummated 
directly  with  the  consent  of  parents  or  before  witnesses,  or  with 
the  cooperation  of  the  church,  —  to  be  "  sponsalia  de  prresenti  ", 
in  other  words,  marriages.  For  this  reason,  after  the  conclusion 
of  such  a  public  betrothal,  an  action  was  given  to  compel  the 
wedding,  with  compulsory  execution;  and  for  the  same  reason 
1  Sohm,  op.  cit.,  193. 
G07 


§  91  ]  FAMILY    LAW  [BoOK   IV 

such  "  sponsalia  de  prtesenti  "  could  be  dissolved  only  in  the 
same  manner  as  marriages,  and  their  breach  was  treated  as  adul- 
tery. At  the  same  time,  here  also,  consummation  of  the  marriage 
was  first  realized  by  actual  cohabitation,  which  was  effected  by 
"  copula  carnalis."  Though  the  older  Protestant  marriage  law 
therefore  differed  in  this  respect  from  tlie  Canon  law,  nevertheless, 
like  that,  it  required  that  the  betrothed  couple  should  cause  them- 
selves to  be  given  in  marriage  and  that  their  union  should  be  con- 
secrated by  a  priest.  The  act  of  the  priest,  as  a  "  chosen  " 
marriage-guardian,  was  intended  to  create  the  marital  com- 
munity for  life,  and  to  make  the  legal  relation  of  marriage  a  rela- 
tionship of  fact.^  The  betrothed  parties,  although  they  were  al- 
ready husband  and  wife,  were  nevertheless  expected  to  begin 
their  married  life,  and  in  particular  to  consummate  the  "  copula 
carnalis  ",  only  after  benediction  was  pronounced  upon  their 
relation  by  the  Church.  An  act  of  the  Church,  and  not  the  mere 
natural  act  that  was  sufficient  in  law,  was  intended  to  be  the  begin- 
ning of  married  life.  If  the  betrothed  couple  were  actually  liv- 
ing together  as  husband  and  wife,  they  must  espouse  each  other 
a  second  time.  Thus  the  German  medieval  law  remained  vital 
in  the  marriage  ceremony  of  the  older  Protestant  marriage-law 
to  the  extent  that  in  this  also  marriage  was  an  act  of  delivery  per- 
formed by  a  third  person,  the  priest;  which  delivery,  in  connec- 
tion with  cohabitation,  completed  the  marriage  ceremony  begun 
with  the  "  desponsatio."  To  be  sure,  its  importance,  as  compared 
with  the  desponsatio,  was  very  much  less  than  that  of  the  medieval 
nuptials  ("Trauung")  as  compared  with  the  betrothal  ("Verio- 
bung  "). 

This  older  form  of  the  Protestant  marriage  law,  derived  partly 
from  Canon  and  partly  from  original  Germanic  law,  was  done 
away  with  in  the  Evangelical  church  as  a  result  of  the  reaction 
against  the  use  of  Canon  law  that  was  inaugurated  by  Just  Hen- 
ning  Bohmer.  Protestant  legal  theory  of  the  1700  s  denied  to 
the  consensual  declaration  of  the  bridal  pair  efficacy  to  constitute 
the  marriage,  attril)uting  such  power  solely  to  the  wedding  con- 
summated by  the  priest.  With  this  change  the  parties'  agreement 
again  acquired  merely  the  significance  of  a  first  and  preparatory 
act,  a  preliminary  contract,  which  indeed  gave  rise  to  certain 
duties  but  could  not  be  perfected  as  a  marriage  except  through  an 
ecclesiastical  marriage  ;  which  was  a  certain  approximation  to  the 
old  Germanic  law.  At  the  same  time,  and  for  the  first  time  in 
'  iSohm,  op.  cil.,  233. 
608 


Chap.  XI]  MARRIAGE  [§  91 

the  long  evolution  of  the  marriage  law,  marriage  became  a  purely 
ecclesiastical  ceremony.  It  was  the  declaration  of  the  priest,  — 
w'hich  he  made  as  an  ecclesiastical  act  and  by  virtue  of  his 
churchly  office,  —  and  no  longer  the  will  and  declaration  of  the 
bridal  pair,  that  created  the  marriage.  The  secular  legislation 
of  many  German  States  also  adopted  the  view  of  this  later  Protes- 
tant marriage  law,  prescribing,  in  accord  with  it,  ecclesiastical 
nuptials  for  Protestant  subjects.^ 

(Ill)  The  Marriage  Law  of  the  Modern  State.  —  The  Re- 
formers, while  rejecting  the  theory  of  the  sacramental  nature  of  "^ 
marriage,  clung  without  qualifications  to  the  view  that  the  law  of 
marriage  was  a  part  of  the  Canon  law  and  therefore  must  belong  J 
to  the  jurisdiction  of  the  church  courts ;  but  the  revival  of  religious 
life  that  was  stimulated  by  the  Reformation,  the  actual  conditions 
produced  by  a  division  of  religious  faiths,  and  finally  the  intel- 
lectual tendencies  that  were  attaining  supremacy  as  embodied 
in  the  law  of  nature,  led  nevertheless  to  a  fundamental  break  with 
the  view  of  the  medieval  Church,  and  to  secularization  of  the  J 
marriage  law  and  the  marriage  ceremony.  A  fundamental  trans- 
formation of  marriage  into  a  purely  secular  legal  act,  performed 
exclusively  before  public  authorities,  was  first  realized  among  the 
Puritans  of  England  and  Scotland,  as  a  result  of  religious  motives 
whose  influence  was  there  most  effectively  felt,  and  which  proved  able 
to  enforce  their  demand  that  marriage  should  be  a  simple  consensual 
declaration  of  the  bridal  pair  before  the  assembled  community. 
Such  was  the  civil  marriage  introduced  by  Cromwell  in  1653  into 
Great  Britain  ;^  an  institution  that  was  abolished  shortly  after  his 
death.  Civil  marriage  was  prescribed  in  these  same  years  through- 
out the  Netherlands  as  a  result  of  considerations  primarily  practical 
and  political,  due  to  the  various  faiths  of  citizens  of  different 
States,  —  and  after  individual  States  had  taken  steps  in  this  direc- 
tion as  early  as  the  1500s  for  their  own  territories;  absolutely 
in  the  case  of  dissenters  and  alternatively  in  the  case  of  members 
of  the  reformed  church.  In  the  later  development,  however, 
especially  in  Germany,  it  was  not  so  much  the  English  and  Dutch 
legislation  that  was  influential  as  that  of  France,  where  civil  mar- 
riage was  introduced  as  an  obligatory  type  of  marriage,  first  by  a 
statute  of  1792  and  then  by  the  Code  Civil,  as  a  result  of  certain 
ideas  of  natural  law  concerning  the  relation  of  State  and  Church. 

1  For  example,  Prussian  Allg.  L.  R.,  II,  1,  §  136  :  "A  perfect  and  valid 
marriage  is  consummated  by  the  espousals  before  the  priest."  §  81  :  "It 
is  not  necessary  that  a  formal  betrothal  shall  precede  every  marriage." 

609 


§91]  FAMILY    LAW  [BoOK    IV 

To  be  sure,  civil  marriage  was  recognized  in  Germany,  at  first, 
only  in  a  few  States  outsitle  the  regions  of  the  French  law ;  and 
when  the  German  Fundamental  Rights  of  1848  demanded  it^ 
and  the  Prussian  constitution,  under  their  influence,  prescribed 
it  (Art.  19)  for  Prussia,  men  were  content  for  the  moment  to  intro- 
duce the  "  facultative  "  form  of  civil  marriage  in  cases  of  necessity 
{i.e.  for  those  persons  who  coukl  not  be  married  in  the  church, 
as  for  example  dissenters  and  Jews).  However,  after  certain 
States  later  adopted  compulsory  civil  marriage  (F'rankfort  1850, 
Baden  1809,  Prussia  1874),  this  was  introduced  for  the  entire 
Empire  by  the  Imperial  Act  of  Personal  Status  of  February  6, 
1875.  With  this  step  the  Canon  law  of  marriage,  so  far  as  it  has 
been  recognized  by  the  State,  was  abrogated.  It  was  conceded, 
henceforth,  merely  the  character  of  a  rule  binding,  at  most,  upon 
the  conscience.  This  view  has  been  adopted,  and  indeed  even 
more  decisively  established,  in  the  codification  of  the  German  law, 
since  the  present  Civil  Code  not  only  prescribes  for  the  marriage 
contract  the  outward  form  of  an  obligatory  civil  ceremony,  ex- 
cluding any  participation  by  representatives  of  the  Church,  but 
also  regulates  exhaustively  and  exclusi\ely  the  substantive  pre- 
conditions and  the  legal  effect  of  the  relation.  As  respects  the 
form  of  the  marriage  ceremony,  it  has  so  modified  the  imperial 
statutes  of  personal  status  as  to  free  itself  from  the  last  traces 
of  the  Protestant  ecclesiastical  rules,  returning  to  the  Tridentine 
and  the  classical  Canon  marriage  law  to  the  extent  of  attributing 
to  the  civil  official  (whose  declaration  consummates  the  marriage, 
under  the  law  of  1875,  in  the  same  way  as  that  of  an  evangelical 
pastor)  merely  the  functions  of  a  recorder,  such  as  was  the  "  paro- 
chus  proprius  "  of  the  Tridentine  law.  It  is  not  the  declaration 
of  the  public  official  that  creates  the  marriage,  but  the  unqualified 
and  immediate  declaration  of  will  by  the  bridal  couple ;  though 
this  must  be  made  personally  and  sinuiltaneously  in  the  presence 
of  such  official,  who  is  authorized  to  receive  it.  With  this  change 
the  marriage  ceremony  has  again  become  an  act  of  secular  private 
law,  as  it  was  down  to  the  1100  s.  The  division  of  the  marriage 
ceremony  into  two  equally  essential  acts  is  not  recognized  in  the 
j)resent  civil  law  of  marriage ;  no  more  than  it  was  in  the  Triden- 
tine law.  True,  the  Civil  Code  also  regulates  betrothal  by  some 
provisions  that  have  given  rise  to  important  differences  of  opinion 
respecting  the  present  legal  nature  of  that  institute  ;  but  betrothal 
is  not,  under  the  present  law,  an  absolutely  necessary  requisite 
for  the  creation  of  a  legal  marriage. 

010 


CliAP.  XI]  MARRIAGE  [§  92 

§  92.  The  Dissolution  of  Marriage.  —  (I)  Dissolution  by 
Death.  —  The  purpose  of  marriage  being  limited  to  the  hfe  of 
the  parties,  the  ordinary  cause  of  its  dissolution  has  always  been 
the  death  of  one  of  the  spouses.  The  consequences  that  result 
therefrom,  as  regards  the  surviving  spouse,  with  reference  to 
rights  of  property  and  legal  relations  to  the  children  will  be  dis- 
cussed below  (§§  94  et  seq.).  As  regards  remarriage  by  the  sur- 
viving spouse,  this  was  of  course  always  umestricted  in  the  case 
of  the  husband.  On  the  other  hand,  the  remarriage  of  the  loidow  ^ 
seems  to  have  been  looked  upon  with  disfavor,  in  the  earliest 
times,  among  many  of  the  Germanic  racial  branches.  Tacitus 
remarks  that  among  some  peoples  the  v/idow  ordinarily  followed 
her  husband  into  death.-  And  although  doubts  might  be  raised 
respecting  the  fact  reported,  and  especially  his  explanation  of  it, 
nevertheless  there  do  exist  other  traces  of  this  custom,  w^hich  as 
is  well  known  was  most  prevalent  in  India.  The  Scandinavian 
Saga  of  Xanna  "  pictures  the  wife  as  dying  of  grief,  and  burned 
with  her  husband  upon  a  funeral  pyre  " ;  "  Brynhild  orders  that 
she  be  burned  with  Sigurd  " ;  ^  among  the  Herulians,  the  widow 
hanged  herself  beside  the  body  of  her  husband ;  among  the  in- 
habitants of  Ditmarsch,  the  marriage  of  a  widow  was  still  regarded 
at  the  end  of  the  ]Middle  Ages  as  highly  scandalous ;  and  among 
the  North  Frisians  no  widow  marries  even  at  the  present  day,  as 
Miillenhoff,  himself  a  North  Frisian,  reports.^  The  most  illumi- 
nating explanation  of  the  voluntary  death  of  a  widow  is  possibly 
found  in  the  custom  of  primitive  times  of  burying  with  a  dead  man 
a  part  of  his  property  (infra,  §  111) ;  the  widow,  along  with 
slaves  and  maid  servants,  belonged  to  this  "  death-  (dead  man's) 
portion  "  ("  Totenteil  ").'^  At  the  same  time  the  aversion  to  a 
widow's  marriage,  the  demand  that  the  widow  "  should  not  move 
her  widow's-chair  ",  cannot  have  been  generally  pre\'alent.  On  the 
contrary,  it  is  a  certainty  that  marriage  of  the  widow  with  a  kins- 
man of  her  husband  was  a  widespread  custom  among  primitive 
Germans  from  the  earliest  times ;  and  that  according  to  the  folk- 
laws of  the  Frankish  period  "  the  marriage  of  widows  was  not 
only  freely  permitted,  but  the  law  protected  the  widow's  right  of 
remarriage  against  impediments  which  selfishness  might  possibly 

1  Martin    Wolff,    "Zur    Gescliichte    dcr   Witwcnehe   im   altdeutschen 
Recht",  iu  Inst/ost.  G.  F.,  XVII  (1896),  3G9-388. 

2  "Germania",  c.  19. 

^  Grimm,  "Reehtsaltertiimer",  I,  G22. 

*  Mullenhoff,  "Deutsche  Altertumskunde",  IV,  313. 

5  Brunner,  "Gesehiehte",  I  (2d  ed.),  109. 

611 


§  92]  FAMILY    LAW  [BoOK   IV 

place  in  her  way."  ^  Since  the  widow  was  subject  durinc;  Hfe 
to  the  sex-guardianship  of  her  dead  husband's  sib,  and  lier  hus- 
band's kindred  could  therefore  control  her  right  of  remarriage, 
there  was  evident  danger  of  their  improperly  profiting  at  her 
expense :  the  sib,  in  order  to  retain  her  property  and  her  labor, 
might  permit  either  no  remarriage  or  only  remarriage  with  an- 
other member  of  the  sib.  The  folk-laws  adopted  diflFerent  means 
to  restrain  this  danger  of  exploitation.  Some,  as  for  example 
the  Lombard  and  the  Saxon  law,  gave  to  the  widow's  own  blood- 
friends  ("  ^lagen  ")  the  control  of  her  betrothal  which  was  origi- 
nally held  by  the  blood-friends  of  the  dead  luisband,  in  case  of 
its  abuse  by  the  latter;  others,  like  the  Icelandic  law,  from  the 
begimiing,  gave  the  power  of  betrothal  to  the  widow's  kindred ; 
still  others,  finally,  like  the  later  Salic  Law,  granted  the  widow  an 
unrestricted  right  of  self-betrothal.  Only  a  transitory  authority 
was  enjoyed  by  the  provision  of  the  "  I>ex  Salica  "  that  kindred  not 
interested  in  the  heritage  of  the  husband,  —  that  is  his  kindred 
on  the  spindle-side,  —  should  exercise  the  right  of  betrothal,  and 
should  receive  from  the  second  husband  the  ring-money  ("  Rei- 
pus  ")  as  a  betrothal  fee;  the  idea  being  that  they  would  act 
more  impartially  than  the  kindred  of  the  first  husband,  who  were 
interested  in  the  inheritance.  When  the  ])ride's  right  of  self- 
betrothal  became  general,  later  in  the  Middle  Ages,  all  these 
restrictions  upon  remarriages  by  widows,  derived  from  the  old 
betrothal-right  of  the  sex-guardian,  disappeared.  And  although 
the  rule  existed  in  Germanic  law,  and  is  still  recognized  in  the  law 
of  the  Civil  Code  (§  1313),  that  a  wid'ow  may  contract  a  second 
marriage  only  on  the  expiration  of  a  certain  period  since  the  dis- 
solution of  her  former  marriage,  the  reason  for  this  is  entirely 
different :  it  is  designed  to  avoid  uncertainty  concerning  the 
paternity  of  children  borne  by  the  widow  after  the  dissolution  of 
the  first  marriage. 

(II)  Divorce  ("  Ehescheidung  ").  —  There  was  always  recog- 
nized in  Germanic  law,  as  in  the  laws  of  kindred  races,  a  possi- 
bility of  dissolving  marriage  even  during  tlie  life  of  the  spouses, 
notwithstanding  its  theoretical  continuance  for  life  that  distin- 
guished it  from  other  forms  of  sexual  union.  However,  in  Ger- 
many as  elsewhere,  the  secular  law  of  divorce  was  displaced,  even 
earlier  than  the  secular  law  of  the  marriage  contract,  by  the 
Church's  international  law  of  divorce,  which  was  dominated  by 
quite  difierent  ideas.     Only  in  modern  times  has  the  State  again 

1  See  Brunner's  essay  on  the  "Reipus",  cited  supra,  p.  591,  at  1292. 

612 


Chap.  XI]  MARRIAGE  [§  92 

assumed  the  legal  regulation  of  this  matter,  thereby  restricting 
the  Canon  law  of  divorce  to  the  field  of  conscience.  Thus  the 
law  of  divorce  has  passed  through  the  same  three  stages  as  has  the 
law  of  marriage  contracts. 

(1)  The  Old  German  law  of  divorce  ^  recognized  three  forms  of 
divorce.^  (A)  In  the  oldest  Germanic  law  a  statutory  divorce 
resulted  from  the  outlawry  of  one  of  the  spouses.  Inasmuch  as 
an  outlaw  was  expelled  from  all  legal  communion  with  his  fellows 
this  necessarily  broke  his  (or  her)  marital  bonds.  His  wife  was 
regarded  as  a  widow ;  he  could  no  longer  have  by  her  legitimate 
children.  Thus,  in  the  medieval  formulas  of  judicial  outlawry 
("  Verbannung  ")  and  prescription  by  vehmic  right  ("  Verfeh- 
mung  "),  the  judge  pronounces  the  wife  of  the  outlaw  "  a  notorious 
widow  "  and  his  children  "  notorious  orphans  " ;  and  similarly, 
medieval  legal  systems  treated  as  illegitimate  a  child  begotten  on 
his  wife  by  a  man  while  in  prison. 

(B)  But  marriage  could  also  be  dissolved  by  the  will  of  the 
spouses.  Like  the  oldest  law,  the  law  of  the  Prankish  period 
still  recognized  "  an  absolute  freedom  of  divorce  by  mutual 
AGREEMENT."  ^  The  Separation  agreement  was  concluded  between 
the  husband  and  the  sib  of  the  wife.  This  was  the  normal  form 
of  divorce. 

(C)  Finally,  there  existed  a  form  of  divorce  at  the  w^LL  of 
one  party.  But  the  right  to  exercise  this  existed,  originally,  in 
favor  of  the  husband  only.  It  implied  an  originally  unlimited 
power  in  the  husband  to  free  himself  from  his  wife  by  repudiating 
her.  In  those  times,  however,  of  which  the  earliest  sources  pre- 
served to  us  afford  us  exact  information,  such  repudiation  of  a  wife 
was  permitted  by  the  law  only  in  certain  cases.  The  most  important 
ground  for  repudiation  was  commission  of  adultery  by  the  wife, 
or  other  equally  serious  breach  of  marital  fidelity,  as  for  example 
a  secret  attempt  upon  her  husband's  life.  But  certainly  there 
was  also  included  among  the  legal  grounds  for  divorce  among  the 
primitive  Germans  sterility  of  the  wife,  as  a  defect  which  pre- 
vented the  begetting  of  children,  which  was  the  chief  purpose  of 
the  marriage.  Charles  the  Great,  for  example,  repudiated  his 
Lombard  wife  for  this  reason  after  a  short-lived  marriage.  "  After 
the  marriage  law  ceased  to  recognize  sterility  as  a  ground  for 
divorce  of  marriage,  the  same  end  was  attained  by  permitting  a 

1  Geffcken,  "Zur  Geschiohtc  dor  Ehcscheidung  vor  Gratian"  (1894). 
*  Brunner,  Z^.  R.  G.,  XVI  (1895),  105  et  seq. 
3  Heusler,  "Institutionen",  II,  291. 

613 


§  92]  FAMILY  LAW  [Book  IV 

consummation  of  a  marriage  only  after  the  woman's  fecundity 
was  put  beyond  doubt  by  facts  that  were  manifest  before  mar- 
riage." ^  Customs  designed  to  secure  the  same  end  are,  as  is  well 
known,  still  met  with  among  the  rural  population  of  Germany. 
Of  course,  if  the  husband  repudiated  his  wife  without  legal  cause 
this  violation  of  the  law  involved  consequences  prejudicial  to 
him,  —  in  particular,  he  became  liable  to  pay  a  bot  to  his  wife's 
Idndred,  who  might  make  feud  upon  him ;  but  even  an  unlawful 
separation  resulted,  nevertheless,  in  a  dissolution  of  the  marriage. 

It  was  only  in  the  Frankish  period  and  under  the  influence  of 
the  Roman  law  that  the  wife  was  empowered,  in  a  few  cases,  to 
declare  herself  free  of  her  husband  by  her  own  act ;  for  example, 
in  case  of  extreme  mistreatment.  The  custom  developed  in  the 
Frankish  systems  of  law  in  accord  with  which  "  the  widow  laid 
keys  and  a  purse  upon  the  corpse  or  upon  the  coffin  of  her  dead 
husband,  thereby  renouncing  in  his  favor  her  rights  to  the  marital 
property  "  ^  {infra,  §  95),  was  a  unilateral  form  of  separation 
which  was  consummated  by  the  wife  after  the  death  of  her 
husband. 

(2)  The  ecclesiastical  law  of  divorce.  (A)  The  divorce  law  of 
THE  Catholic  Church. — Already  in  the  Frankish  period  the  secu- 
lar law  of  divorce  was  hard  pressed,  and  from  the  1900  s  was  entirely 
displaced,  by  that  of  the  Church.  From  this  time  on  the  Church 
enjoyed  an  exclusive  jurisdiction  of  divorce  actions,  and  since  it 
also  proved  capable  of  substituting  judicial  divorce  for  the  private 
divorce  of  the  old  Germanic  and  Frankish  law  it  was  in  a  posi- 
tion to  enforce  in  such  actions  its  own  sul)stantive  law  of  divorce 
which  rested  upon  ideas  totally  different  from  those  of  the  secular 
law.  The  Canon  law  of  divorce  rested  upon  the  principle  that  a 
marriage  consummated  by  "  copula  carnalis  ",  and  thereby  made  ^ 
a  sacrament,  was  indissoluble.  "  It  must  excite  astonishment 
and  wonder  that  the  Church  was  able  to  elevate  to  the  rank  of  a 
legal  rule,  in  the  midst  of  a  world  of  barbarism,  an  ideal  so  high 
as  that  of  the  indissolubility  of  marriage,"  M  To  be  sure,  it  by  no 
means  succeeded  in  absolutely  enforcing  this  rule.  The  indis- 
solubility of  the  marriage  bond  was  in  large  part  a  fiction  in  the 
Middle  Ages,  especially  among  the  highest  social  classes.''  As  a. 
concession  to  the  actual  facts  of  life,  separation  without  dissolu- 

'  Brunner,  op.  cit.,  107. 

«  Brunner,  "Geschic-hte"  (  2d  ed.),  39. 

'  Marianne  Weber,  op.  cit.  (supra,  p.  61),  202. 

*  Finke,  in  the  Inter.  W.  Sch.  (r/.  supra,  p.  01),  IV  (1910),  1292. 

614 


Chap.  XI]  MARRIAGE  .  [§  92 

tion  of  the  marriage  bond  was  finally  introduced  (definitively  by 
the  Tridentine  law).  This  was  the  so-called  "  separatio  quoad 
thorum  et  mensam  " ;  but  even  this  did  not  permit  remarriage 
by  the  spouses  so  separated.  The  Canon  law,  by  recognizing 
clandestine  contracts  of  marriage  {supra,  p.  006),  created  wide- 
spread uncertainty  respecting  the  legality  of  marriages  consum- 
mated in  a  manner  formally  correct.  Thus,  the  Church,  by  exag- 
gerating its  idea  of  the  indissolubility  of  marriages,  renounced  the 
higher  ideal  of  purity  in  the  marriage  relation.  Under  the  domi- 
nance of  the  Canon  law  of  divorce,  which  received  its  final  form 
in  the  decrees  of  the  Council  of  Trent,  nothing  was  left  to  the 
secular  law  beyond  the  right  to  regulate  the  effect  of  the  separa- 
tion which  the  Canon  law  thus  permitted  upon  marital  property 
and  the  legal  relations  of  parents  and  children. 

(B)  The  Protestant  law  of  divorce  assumed  from  the  begin- 
ning a  position  sharply  contrasted  with  that  of  the  Canon  law  in 
that  it  recognized  the  possibility  of  a  dissolution  of  the  marriage 
bond.  This  was  a  step  in  advance,  but  it  was  offset  by  the  fact 
that  it  rejected  the  action  for  divorce  developed  in  the  Canon 
law,  and  reintroduced  the  old  right  of  self-divorce.  However, 
self-divorce  was  later  forbidden  and  an  official  decree  of  divorce 
required.  Adultery  was  recognized,  without  exceptions,  as 
ground  for  divorce ;  whereas  the  agreement  of  the  spouses  was 
in  no  case  recognized  as  such.  As  to  other  matters  there  was 
vacillation  for  a  long  time,  especially  as  respected  desertion,  until 
finally  the  more  liberal  view  prevailed  that  divorce  should  be 
permitted  for  moral  delinquencies.  But  along  with  this  there 
was  recognized  a  separation  from  bed  and  board  for  a  definite  or 
indefinite  period. 

(3)  The  divorce  law  of  the  modern  State.  —  Modern  State  legis- 
lation contented  itself,  at  first,  with  recognizing  the  ecclesiastical 
law  of  divorce.  As  regards  Catholic  subjects  this  position  was 
adhered  to  in  the  modern  codes.  They  recognized  the  indissol- 
ubility of  marriage  as  respects  the  bond  (and  so  the  Austrian  law, 
even  to-day),  l)ut  for  the  most  part  increased  the  number  of  rea- 
sons which  justified  a  separation  from  bed  and  board.  An  inter- 
mediate position  was  adopted  by  the  Prussian  "Landrecht "  in  pro- 
viding that  when  a  right  of  separation  was  recognized  in  the 
ecclesiastical  court  this  should  have  the  effect  of  a  divorce  under 
the  private  law.  On  the  other  hand,  the  codes  abrogated  the 
ecclesiastical  right  of  divorce  theretofore  conceded  to  evangelical 
subjects,  and  replaced  this  by  a  State  law  of  divorce  that  facili- 

615 


§  92]  FAMILY    LAW  [BoOK    IV 

tated  divorces  in  the  utmost  possible  degree,  in  accord  witli  prin- 
ciples of  natural  law  and  utilitarian  considerations.  The  Prus- 
sian "  Landrecht  "  went  furthest  in  this  direction.  It  permitted 
divorce  in  case  of  insurmountable  aversion,  as  in  cases  of  child- 
less marriages,  —  granted,  to  be  sure,  always  by  a  court,  —  in 
case  "  it  ai)pears  from  the  nature  of  the  evidence  that  such  repug- 
nance is  so  strong  and  so  deeply  seated  that  absolutely  no  hope 
remains  of  reconciliation  and  a  realization  of  the  ends  of  the  mar- 
riage "  (II,  1,  §718  a). 

In  the  1800  s  the  ecclesiastical  law  of  divorce  was  finally  re- 
placed by  that  of  the  State,  which  thereby  became  legally  binding 
upon  Catholic  subjects  also.  As  a  result  of  this  there  existed  at 
first  an  extreme  diversity  in  the  law,  since  the  state  statutes 
differed  greatly  in  their  definition  of  legal  grounds  for  divorce. 
Later,  however,  this  subject  was  also  regulated  uniformly  for  all 
Germany,  upon  the  principle  of  an  absolute  secularization  of 
divorce,  by  the  imperial  statute  of  personal  status  of  February  0, 
1875.  The  divorce  law  of  the  Civil  Code  has  now  in  turn  dis- 
placed that.  The  Code  has  retained,  in  theory,  the  viewpoint 
of  the  Personal  Status  Act,  for  unlike  the  Catholic  law  it  recog- 
nizes divorce.  It  has  followed  the  latter  only  so  far  as  to  gi\'e 
a  choice  between  divorce  and  that  separation  from  bed  and  board 
("  abrogation  of  the  marital  community  ")  which  prevents  re- 
marriage and  which  was  rejected  in  toto  by  the  Personal  Status 
Act ;  but  it  provides  that  when  one  spouse  has  brought  an  action 
for  separation,  divorce  must  be  granted  upon  demand  of  the  other 
party,  and  that  when  a  separation  has  been  granted  either  spouse 
may  demand  divorce  upon  the  basis  of  that  judgment  (§§  1575- 
157G).  However,  though  the  demands  for  a  complete  abrogation 
of  the  ecclesiastical  divorce  law  and  for  an  exclusive  competence 
of  secular  courts  in  divorce  cases  were  thus  unqualifiedly  realized, 
nevertheless,  as  respects  the  substantive  law  of  divorce,  there 
was  a  decided  departure  from  the  doctrine  of  the  law  of  nature. 
In  the  1840  s  the  attempt  had  already  been  made  in  Prussia, 
during  the  ministry  of  Savigny,  to  replace  by  some  stricter  regu- 
lation the  right  of  free  divorce  under  the  State  law,  and  the  present 
Civil  Code  has  realized  this  aim  by  adopting  the  rule  that  divorce 
or  separation  can  only  be  pronounced,  aside  from  cases  of  incur- 
able insanity,  when  there  has  been  misconduct  ("  Verschulden  ") 
on  the  part  of  one  or  of  both  spouses.  The  Code  has  laid  down  a 
few  absolute  grounds  for  dissolution  of  marriage,  —  that  is,  those 
that  give  a  right  to  divorce  (adultery,  bigamy,  unnatural  prac- 

616 


Chap.  XI]  MARRIAGE  [§  93 

tices,  attempt  upon  the  plaintiff's  life,  wilful  desertion) ;  and  in 
addition  permits  the  judge  to  dissolve  a  marriage  ("  relative  " 
causes  for  divorce)  when  either  party  "  by  serious  violation  of 
marital  duty  or  dishonorable  or  immoral  conduct  "  has  effected 
"  such  a  fundamental  derangement  of  conjugal  relations  "  that 
the  innocent  spouse  "  cannot  be  expected  to  continue  the  mar- 
riage "  (§  1568).  The  same  principles  have  been  adopted  by  the 
Swiss  Civil  Code  (§§  137-158),  which  likewise  recognizes  separa- 
tion in  addition  to  divorce,  adds  relative  to  absolute  causes  of 
divorce,  and  aside  from  cases  of  insanity  (and  also,  of  course,  in 
case  of  relative  grounds  for  divorce)  requires  misconduct  ("  Ver- 
schulden  ")  on  the  part  of  one  of  the  parties. 

§  93.  Personal  Legal  Relations  of  the  Spouses.  (I)  The  Older 
Law.  —  The  husband,  in  the  patriarchal  family  of  the  prehistoric 
Indo-Germanic  period,  enjoyed  in  the  marriage  a  position  so 
superior  to  that  of  woman  that  language  had  no  word  for 
the  conceptions  "  marriage  ",  "  spouses  ",  or  "  parents."  Sim- 
ilarly, the  mundium  of  the  old  Germanic  law  still  involved  a 
subjection  of  the  bride  to  the  unlimited  power  of  the  man  to  whom 
she  was  given  in  marriage.  And  though  the  moral  standards 
of  society  ("  Sitte  ")  might  accord  to  the  "  legitimate  "  wife  a 
position  of  respect  that  distinguished  her  from  concubines  and 
servants,  and  might  attribute  to  her  a  higher  value  as  the  most 
important  worker  in  her  husband's  household,  she  was  neverthe- 
less legally  at  the  mercy  of  his  caprice.  Even  in  the  IMiddle 
Ages  the  "  brutal  formula  "  was  still  occasionally  used  that  she 
was  "  his  chattel."  ^  Legally,  she  occupied  the  same  position 
in  relation  to  him  as  a  child  subjected  to  his  mundium ;  and  in 
token  of  this,  forms  of  adoption  were  common  in  the  marriage 
ceremony  {supra,  p.  600).  The  husband  had  the  right  to  kill 
his  wife.  This  power,  certainly  originally  unlimited,  was  later 
subjected  to  certain  preconditions,  at  first  by  social  moral 
standards  and  then  also  by  law.  The  principal  cause  which 
long  continued  to  justify  a  husband  for  killing  his  wife  was  adul- 
tery on  her  part.  As  for  the  third  person,  adultery  was  originally 
regarded  not  as  a  true  crime  but  as  an  unlawful  interference  with 
the  husband's  rights,  and  moreover  the  legal  consciousness  of  the 
primitive  Germans  was  dominated  by  a  deeply  rooted  conviction 

'  Brunner,  "Geschichte",  I  (2d  ed.).  101,  referring  to  low  Prankish 
legal  systems.  He  cites  from  the  Flemish  eoHtume  of  Ardenburg  the  rule 
that  a  husband  may  cut  open  his  wife  and  warm  his  feet  in  her  blood,  pro- 
vided only  that  he  sew  her  up  again  and  she  remain  alive. 

617 


§  93]  FAMILY   LAW  [BoOK   IV 

that  the  wife  could  be  guilty  of  the  crime  as  against  her  husband, 
but  not,  conversely,  the  husband  as  against  his  wife.  iThis  "  in- 
equality of  sexual  morality  "  not  only  prevailed,  of  course,  so  long 
as  the  acquisition  of  several  wives  and  unlimited  sexual  intercourse 
with  "  secondary  "  ("  Neben- ")  wives  and  concubines  was 
permitted  to  the  husband,  but  continued  under  the  supremacy 
of  monogamy.  The  Church  alwaj's  energetically  championed  in 
this  matter  the  equality  of  the  sexes,  but  struggled  along  in  vain 
before  it  was  able  to  enforce  its  view,  which  was  morally  far  the 
higher.  Adultery  by  the  wife  also  entitled  the  husband  to  drive 
her  with  curses  from  his  house,  and  thus  dissolve  their  marriage 
{supra,  p.  613).  In  other  cases  his  discipUnary  power  over  his 
wife  gave  him  the  right  to  lock  her  up  and  deprive  her  of  food. 
Indeed,  he  could  sell  her ;  and  this  not  only  as  a  punishment  but 
also  in  order  to  free  himself^  with  the  money  so  realized,  from  press- 
ing pecuniary  difficulties.^  The  most  brutal  application  of  this 
commercial  conception  of  marriage  was  doubtless  illustrated  when 
two  Icelanders  exchanged  their  entire  possessions  in  lands  and 
chattels,  including  their  respective  wives ;  the  wife  of  one,  to  be 
sure,  handed  herself  as  a  result,  but  the  other  peacefully  sub- 
mitted.^/_J)  very  where,  moreover,  the  husband  possessed  the  right 
to  chastise  his  wife  as  he  would  a  servant.  As  late  as  in  the 
Xibelungenlied,  Kriemhild  tells  us  how  Siegfried  has  beaten  her 
body  blue  because  of  her  useless  chatter.  In  the  skevin-book  of 
Briinner  (of  about  1315)  it  is  recommenrled  to  the  husband  to  exer- 
cise moderately  his  right  of  chastisement,  but  the  right  itself  is 
clearly  recognized ;  and  in  1431  a  Breslau  husband  promised  to 
chastise  his  wife,  in  future,  with  switches  only,  as  was  fitting  and 
consistent  with  the  fidelity  and  honor  of  a  worthy  man." 

Although  in  the  course  of  the  Middle  Ages  it  became  increasingly 
rare  to  resort  to  the  legal  powers  that  were  the  extreme  conse- 
quences of  the  husband's  power  of  mundium,  the  power  neverthe- 
less was  maintained  in  theory.  Even  the  Church  strove,  in  this 
matter,  to  strengthen  the  husband's  ])osition.  Starting  with 
the  idea  that  woman  was  a  being  of  inferior  worth  and  that  mar- 
riage was  created,  essentially,  solely  in  order  to  avoid  the  sins  of 
the  flesh,  it  taught,  upon  the  strength  of  the  Apostle's  words,  that 
the  wife  should  be  subject  to  the  husband.     And  the  result  of 

1  According  to  a  report  in  the  "  Allgomeine  Zoitunp:"  of  1844,  no.  8, 
cited  by  Wnckcrnnqcl  in  op.  cit.,  p.  .58.5  siiprn,  a  case  occurred  in  England 
as  late  as  1844  in  which  a  man  sold  his  wife  in  public  market. 

*  Maurer,  "Vorlesungen",  II,  038. 

018 


Chap.  XI]  MARRIAGE  [§  93 

this  was  that  when  sex-guardianship  over  unmarried  adult 
daughters  became  less  prominent  (supra,  pp.  65  et  seq.),  the  hus- 
band was  recognized  as  the  mundium-holder  ("  Muntherr ") 
of  his  wife;  or  as  the  medieval  legal  sources  were  accus- 
tomed to  express  it  her  "  guardian  ",  "  steward  ",  or  "  mas- 
ter ",  the  "  principal  "  in  the  marriage  relation. ^  Whereas  in 
the  older  law  the  mundium  passed  from  the  bride's  mundium- 
holder  ("  Gewalthaber  ")  to  the  bridegroom  only  as  the  result 
of  a  betrothal  and  nuptials  in  accordance  w^ith  law,  remaining 
with  the  guardian  in  case  her  marriage  was  consummated  without 
his  consent,  in  the  later  Middle  Ages  the  husband's  guardianship 
sprang  directly  from  every  legall}"  valid  marriage  as  a  rule  of 
objective  law,  without  further  formalities. 

In  the  face  of  all  this  it  means  little  that  the  wife  is  characterized 
in  the  Law-Books  as  the  "  companion  "  of  her  husband.-  For 
this  relation  of  fellowship,  which  began  with  cohabitation,  was 
confined  to  the  fact  that  the  wife  shared  the  name  and  the  status 
of  her  husband,  and  that  his  domicile  was  determinant  of  her 
own.  In  other  respects  it  did  not  restrict  in  the  least  the  husband's 
guardianship. 

However,  as  already  remarked,  there  gradually  resulted  a 
weakening  of  the  powers  and  an  increase  in  the  protective  duties 
implicit  in  the  right  of  mundium  {supra,  p.  585).  This  transfor- 
mation, naturally,  also  affected  the  husband's  guardianship,  . 
which  thenceforth  came  to  signify,  primarily,  his  duty  to  repre-. 
sent  his  wife  in  court,  even  where  she  herself  was  a  litigant. 
At  the  same  time,  the  Saxon  town-law  alread}^  permitted  the  wife 
^o  appear  independently  in  court.  The  wife  found  support  in 
her  family  against  abuses  of  her  husband's  guardianship ;  the 
protection  once  accorded  her  in  a  right  of  divorce  disappeared 
with  the  displacement  of  the  secular  by  the  Canon  law  of  divorce. 

(II)  The  Modern  Law.  —  Even  in  later  centuries  the  personal 
legal  relations  of  the  spouses  remained  subject,  in  essentials,  to  the 
principles  of  the  medieval  marital-stewardship  ("  Ehevogtei  "). 
True,  it  was  retained  under  this  express  name  in  only  a  few  legal 
systems;  but  even  where  the  name  was  abandoned  nothing  was 
actually  altered,  generally  speaking,  in  the  legal  relations  of  the 
parties.     Even  the  great  intellectual  currents  of  modern  times 

1  Ssp.,  Ill,  45,  §  3 ;  Swsp.,  10,  2  (G) ;  Ostfries.  Landrecht,  II,  109 
(1515). 

2  Note  the  continuation  of  Ssp.,  Ill,  45,  §  3.  Cf.  Fchr,  op.  cit.  (p. 
01  supra),  37. 

619 


/ 


§  93]  FAMILY   LAW  [BoOK   IV 

brought  about  no  fundamental  change.  The  reception  of  the 
Roman  law,  which  in  its  final  form  no  longer  recognized  a 
"  manus  mariti  ",  was  unable  to  overcome  in  this  matter  the 
native  legal  customs ;  for  it  was  possible  to  api)eal  from  it  to  the 
authority  of  the  Canon  theory  that  the  husband  was  the  "  prin- 
cipal "  of  the  marriage  relation.  The  Evangelical  doctrine  also 
maintained  this  view  without  qualification ;  though  it  is  true 
that  by  familiarizing  the  peoi)le  through  the  translation  of  the 
Bible  with  the  high  regard  for  marriage  expressed  in  the  Old 
Testament,  it  contributed  much  toward  a  spiritual  deepening  of 
the  significance  of  the  marital  relation.  Even  the  law  of  nature, 
though  it  made  marriage  under  its  contract-theory  a  partner- 
ship of  two  originally  equal  individuals,  nevertheless  assumed 
a  complete  subordination  of  the  wife  to  her  husband ;  it  merely 
deri\'ed  this  subjection,  theoretically,  from  a  voluntary  agreement 
of  the  parties.  This  view  also  prevailed  in  the  great  modern 
codes.  The  Prussian  "  Allgemeines  Landrecht  ",  for  example,  em- 
phasized on  the  one  hand  the  mutual  moral  duty  of  the  spouses, 
regulating  by  this  principle  their  personal  relations  even  in  the 
most  intimate  matters ;  but  on  the  other  hand  it  none  the  less 
declared  the  husband  to  be  the  principal  of  the  marital  partner- 
ship, whose  will  should  be  decisive  in  their  common  affairs  (II. 
1,  §  184).  It  conceded  that  assaults  by  the  husband  need  not 
under  all  circumstances  be  ground  for  complaint  on  the  part  of 
the  wife,  but  did  not  mention  his  earlier  ])owcr  of  moderate  chas- 
tisement, —  which  was  still  recognized  by  the  Bavarian  Territorial 
Law  and  by  many  other  of  the  regional  systems.  Again,  it  still 
assigned  to  the  husband  the  representation  of  his  wife  in  court, 
in  accord  with  the  general  legal  conditions  of  that  time,  denying 
her  as  a  rule  all  independent  rights  of  litigation,  and  attributing 
to  him  a  presumptive  power  of  attorney.  As  respects  this  last 
point,  a  fundamental  change  took  place  in  the  course  of  the  1800  s, 
full  litigant  capacity  being  conceded  to  all  women,  equally  whether 
married  or  unmarried,  —  first  in  the  case  of  women  engaged  in 
commerce,  then  as  to  those  engaged  in  industry,  and  finally,  under 
the  imperial  Code  of  Civil  Procedure,  as  to  all  women.  On  the 
other  hand  the  present  Civil  Code  retains  the  principle  that  the 
decision  of  all  matters  affecting  their  common  life  during  marriage 
belongs  to  the  husband  ;  the  wife,  however,  need  not  obey  if  he 
abuses  this  right  of  decision  (§  1354).  Moreover,  the  Civil  Code 
has  adopted  the  traditional  rules,  borrowed  from  the  Prussian 
"Landrecht  "and  other  modern  codes,  that  make  the  wife  share 

620 


Chap.  XI]  MARRIAGE  [§  94 

the  domicile,  name,  status,  and  nationality  of  the  husband,  ascribe 
to  her  the  right  and  duty  of  caring  for  the  home,  and  require  her 
to  labor  in  the  household  and  business  of  her  husband  as  circum- 
stances require.  As  an  offset  to  these  duties  and  as  compensa- 
tion for  her  renunciation  of  the  right  of  independent  choice,  the 
Code,  in  common  with  earlier  legal  systems,  accords  her,  in  addi- 
tion to  her  .§o-called  key-right  ("  Schliisselgewalt  ",  infra,  §  95), 
a  claim  against  her  husband  for  support  suited  to  her  rank ;  al- 
though she  must  in  turn  support  him  in  case  of  necessity  (§  1360). 
The  rule  of  the  Swiss  Civil  Code  is  in  general  the  same.  True, 
the  husband  is  still  expressly  designated  in  it  as  the  "  principal  of 
the  community  "  (§  160) ;  but  on  the  other  hand  the  view  is 
more  strongly  emphasized  that  "  marriage  is  a  community  " 
whose  advancement  the  spouses  are  bound  "  to  forward  by  har- 
monious cooperation  ",  and  whose  representation,  though  pri- 
marily incumbent  upon  the  husband,  rests  also  upon  the  wife. 

§94.    The  Law  of     Marital   Property:^  (1)   of    the    Folk-laws. 

(I)  The  Point  of  Departure  in  the  Historical  Development.  — 
The  law  of  the  marital  community  of  goods  is  that  part  of  Ger- 

1  The  leading  work  is  Schroder's  "Geschiehte  des  ehelichen  Giiterreehts 
in  Deutschland",  Vol.  1  (1863)  covering  the  age  of  the  folk-laws,  Vol.  2 
(in  three  parts,  1866,  1871,  1874)  covering  the  age  of  the  Law-Books. 
Cf.  therewith  Schroder,  "Das  eheliche  Giiterrecht  und  die  Wanderungen 
der  dexitschen  Stiimme"  in  Hist.  Z.,  XXXI  (1874),  289-311.  Further- 
more, Hasse,  "Beitrag  ziu*  Revision  der  bisherigen  Theorie  von  der  ehe- 
lichen Giitergemeinschaf  t "  (1808);  Runde,  "Deutsehes  eheliehes  Giiter- 
recht" (1841);  Gerher,  "  Betrachtungen  iiber  das  Giiterrecht  der  Ehe- 
gatten  nach  deutschem  Recht",  in  Iheritig's  J.  B.,  I  (1857),  239  et  seq. 
and  also  in  the  "Leipziger  Delianatsprogramm "  of  1869,  lioth  articles 
reprinted  in  the  author's  "  Gesammelte  Juristische  Abhandlungen"  (1872), 
311-371;  7?o</i,  "  tjber  Giitereinheit  und  Giiterverbindung",  in  J.  B.  gem. 
R.,  Ill  (1859),  313  et  seq.;  Hiinel,  "Die  eheliche  Giitergemeinschaft  in 
Ostfalen",  in  ZK  R.  G.,  I.  (1861),  273  et  seq.;  Sandhaas,  "Fninkisches 
eheliehes  Giiterrecht"  (1866);  v.  Martitz,  "Das  eheliche  Giiterrecht  des 
Sachsenspiegels  und  der  verwandten  Reehtsquellen "  (1867);  Agricola, 
"Die  Gewere  zu  rechter  Vormundsehaf t "  (1869);  Roth,  "Das  deutsche 
eheliche  Guterrecht",  in  Z.  vergl.  R,  W.,  I  (1878),  39  et  seq.;  Hiiber, 
"Die  historische  Grundlage  des  eheUehen  Giiterreehts  der  Berner  Hand- 
veste"  (1884);  Adlcr,  "Ehehches  Giiterrecht  und  Abschiclitungsrecht 
nach  den  altest;en  bairischen  Reehtsquellen"  (1893);  Brunner,  "Zu  Lex 
Salica",  tit.  44:  'De  Reipus'"(p.  591  supra),  "Die  frankisch-romanische 
Dos",  in  K.  Preuss.  Alvad.  Wiss.  Sitz.,  Ber.  1894,  54.5-574,  "Die  Geburt 
eines  lebenden  Kindes  und  das  eheliche  Vermogensrecht"  in  Z-.  R.  G., 
XVI  (1895),  63-108;  Stern,  "Der  Ursprung  der  siichsisclien  Leibzucht" 
(1896) ;  V.  Wyss,  "Die  ehelichen  Giiterrechte  der  Schweiz  in  ihrer  reehts- 
gesclxichtlichen  Entwieklung"  (1896);  Schroder,  "Das  eheUche  Giiter- 
recht nach  dcm  BOB  in  seinen  Grundziigen"  (3d  ed.,  1900);  Bchre, 
"Die  Eigeutuinsverhiiltnisse  im  ehelichen  Giiterreelit  des  Sachsenspiegels 
und  Magdeburger.Reehts"  (1904);  5a  ;7,^f/(.,  "Eheliehes  Cruterrecht  im 
Erzherzogtum  Osterreich  im  16.  Jalirliundert"  (1905);  Cnillemer, 
"L'origine  du  douaire  des  enfants"  in  "Studi  di  diritto  .  .  .  pubblicati 
in  onore  di  V.   Scialoja",   II   (1905),  249-278;    Arnold,   "Das  eheliche 

621 


§  94]  FAMILY    LAW  [BoOK   IV 

manic  private  law  which  presents  by  far  the  greatest  complexity 
and  disunity.  In  the  course  of  its  develo})ment  it  has  assumed 
very  diverse  forms,  which  in  part  followed  one  another  chrono- 
logically and  in  part  existed  simultaneously  throughout  greater 
or  smaller  jurisdictions.  Down  to  the  present  day  the  legal  map 
of  Germany  has  not  presented  as  regards  any  other  matter  a 
picture  even  approximately  as  motley.  But  this  development  of 
the  marital  conmnmity  of  goods,  notwithstanding  it  was  marked 
in  such  extreme  degree  by  particularistic  characteristics  and  led 
to  such  a  variety  of  legal  forms  that  it  is  difficult  to  survey  them, 
has  nevertheless  always  been  dominated  by  a  few  leading  ideas. 
Although  the  evidence  of  the  oldest  legal  sources  already  reveals 
various  forms  of  community  in  the  legal  systems  of  the  different 
racial  branches,  this  development  is  doubtless  to  be  traced  to 
beginnings  common  to  all  branches  of  the  Germanic  race.  In 
view  of  the  general  character  of  the  Germanic  marriage,  the  origin 
can  have  been  no  other  than  the  house-lord's  unlimited  power 
over  all  property  of  the  household,  the  sole  ownership  of  the 
husband  in  all  marital  property.  Whatever  property  the  bride 
brought  with  her  into  the  marriage  passed,  like  her  person,  under 
the  power  of  her  husband ;  at  the  most,  those  objects  remained 
her  own  that  were  intended  for  her  exclusive  use.     The  husband's 


GuterrechtvonMiihlhauseni.  E.am  Ausgangdes  ]\Iittelalters",in  Beyerle's 
"Beitrage",  I  (1906);  Kiesel,  "Die  Bedcutung  der  Gewere  des  Mamies 
am  Frauengiite  fiir  das  Ehegiiterreeht  des  Saehsenspiegels",  no.  85  (1900) 
of  Gierke's  "Untersuchungcn" ;  E.  Heymann,  "Zum  Ehegiiterrecht  der 
heiligen  Elisabeth",  in  Z.  Ver.  Tiu-in.  G.,  XXVII  (now  ser.  X,  1908), 
1-22;  Hradil,  "Untersuehungen  zur  spatmittelalterlichen  Ehegiiter- 
reehtsbildinig  nach  bayerisch-ostcrroicliisehen  Koclilsquellen,  I :  Das 
Heiratsgut"  (1908),  and  c/.  A.  B.  Schmidt  in  Z\  R.  (!.,  XXXI  (1910), 
G3()-638;  Hradil,  "Boitragc  zur  Ciescliichte  dos  siiddeutschen  Eliogiiter- 
reelits"  in  Z".  R.  G.,  XXX  (1909),  30-1-310;  Franco,  "Vicendo  storieho 
dclla  doto  romana  nella  i)ratiea  medievale  dcU'  Italia  suporiorc",  in 
"Archivio  giuridieo  F.  Scrafini",  LXXX  (1908),  393-490;  Kapras, 
"Eheliches  Giiterreeht  im  altbohmisfhen  Landrechte",  in  Z.  vorgl.  R.  W., 
XXIII  (1909),  106-208;  //rar/i/,  "Zur  Thoorio  der  Gerade",  in  7A  R.  G., 
XXXI  (1910),  67-130;  Sleiner,  "Das  eheliche  (Jiitorreclit  des  Kantons 
Schwyz  mit  vergleichenden  Ilinweisen  auf  das  clieliclie  Giitorrecht  des 
Bchweizorisc'hen  Zivilgosotz})U('bs",  in  Eqr/cr's  Ziir.  Boitrage  zur  R.  W., 
XXVII  (1910),  and  Slutz  in  7?.  U.  G.  XXXI  (1910),  657,  ()58;  Scliuj^fer, 
"La  comunione  di  I>eni  Ira  coniugi,  a  i)ropositio  di  roconti  studi '  ,  in 
"Rivista  itabana  i)er  le  scionzc  giuridicho",  XLVIII  (1911),  57-72,  241- 
263;  Reich,  "Das  Ehogiiterrcfht  in  don  doutsolion  Toil(>n  von  Stoiermark, 
Karntcn  und  Krain",  in  "Festschrift  zur  JaluinuuhTtfoior  dos  ooster- 
reic'hisf'hen  allgemoincMi  biirgorbohen  Gosotzbuohs"  (1911),  II,  3()1  el  seq.; 
Barlsch,  "Das  ehebcho  (Jiiterrecht  in  dor  Summa  Ravmunds  von  Wiener 
Noustadt",  in  Wien.  K.  Akad.  Wiss.,  Sitz.  Bor.,  CLXVllI  (1912),  7th 
essay;  E.  Ilis,  "Das  ohobclio  Cliitorrocht  in  don  Tossinor  ReohtsquoUon, 
seine  Grundlage  im  langobanbschon  und  vulgar-romischcn  Recht",  in 
Z.  schweiz.  R.,  LII  (new  ser.  XXX,  1911),  85-143. 

G22 


Chap.  XI]  MARRIAGE  [§  94 

exclusive  rights  under  the  property  law  corresponded  to  his  ab- 
solute power  in  personal  relations.  His  ownership  was  limited, 
to  be  sure,  by  the  fact  that  it  was  controlled  by  the  family-law : 
the  marital  property  constituted  a  household  estate  that  neces- 
sarily remained  dedicated  to  the  purposes  of  the  marriage,  and 
which  therefore,  above  all,  could  not  be  alienated  from  the 
children  {supra,  p.  304 ;  infra,  §  98) ;  but  the  wife  had  no  share 
in  this  community  of  rights  in  household  property  which  existed 
between  the  father  and  the  sons.  This  idea  of  an  undivided  prop- 
erty in  the  husband  was  relaxed,  however,  in  favor  of  the  wife  as 
early  as  in  the  age  of  the  folk-laws.  Their  provisions,  admittedly 
debatable  in  many  respects,  by  no  means  show  (if  we  accept 
the  prevailing  opinion  —  though  this  is  contested  by  Huber  and 
Heusler,  who  champion  a  sole  property  of  the  husband  in  the 
household  estate  even  under  the  folk-laws),^  such  a  subjection 
of  the  wife's  entire  property  to  her  husband's  ownership  as  was 
peculiar  to  the  original  law.  On  the  contrary  they  already  recog- 
nize her  ownership  of  certain  portions  of  the  marital  property. 
This  important  advance  was  a  consequence  of  the  gradually  in- 
creasing legal  and  economic  independence  of  women,  especially 
of  their  capacity  to  inherit,  although  this  extended  at  first  solely 
to  chattels,  and  only  later  to  land  {infra,  §  107).  "  The  increas- 
ing improvement  in  woman's  position  was  the  real  leaven  in  the 
entire  later  development  of  the  law  of  marital  i)roperty."  ^ 

So  soon  as  daughters  became  capable  of  holding  and  inheriting 
property  within  their  own  families,  they  were  in  a  position  to 
bring  with  them  in  marriage  property  of  considerable  value  to 
their  husbands;  for  their  kindred  were  thenceforth  bound  to 
indemnify  them  for  their  renunciation,  upon  marriage,  of  herital 
rights  in  their  father's  estate.  Again,  when  the  wife  came  to  be 
regarded  as  the  subject  of  independent  property  rights,  her  hus- 
band's gift  to  her,  especially  the  "  Wittum  "  that  was  developed 
from  her  purchase-price,  might  become  her  property.  With  this 
step  the  original  undivided  marital  estate  necessarily  disappeared. 
It  was  now  possible,  for  the  first  time,  to  speak  of  an  actual  marital 
community  of  goods  in  the  sense  of  a  regulation  of  the  spouses' 
legal  rights,  created  by  their  marriage,  in  the  property  constitut- 

1  Here  a^ain  quite  a  different  view  is  adopted  by  Ficker,  who,  in  har- 
mony with  his  assumption  of  an  original  equality  of  women  with  men  under 
the  inheritance  law,  argues  for  a  total  separation  of  the  property  of  the 
two  spouses  as  the  original  form  of  the  Germanic  law  of  marital  property. 
See  his  "  Untersuehungen  /-ur  Erbenfolge",  IV,  291  et  seq. 

2  Hubcr,  "Schv/.  Privatrecht",  IV,  386. 

623 


§  94]  FAMILY    LAW  [BoOK   IV 

iiig  tlie  marital  estate ;  for  it  was  only  now  that  property  existed 
in  which  not  merely  the  husband  but  also  the  wife  had  rights ; 
it  was  only  thenceforth  that  there  existed,  during  marriage,  a 
wife's,  in  addition  to  the  husband's,  estate. 

(II)  Constitution  of  the  Wife's  Estate.  —  The  property  of  the 
wife  in  the  age  of  the  folk-laws  might  consist  of  the  following 
elements  recognized  by  law : 

(1)  The  dowry,  or  marriage  portion  {"  maritagium  "  ;  "  Aus- 
steuer  "  ;  "  Heimsteuer  ",  really  "  Heisteuer  ",  "  hiustiire  "  ; 
"  Ileiratssteuer  ",  —  marriage  "  contribution  ")•  The  "  mari- 
tagium ",  that  is  the  "  j)roperty  that  was  given  with  the  wife 
incidentally  to  her  marriage,  either  by  the  house  of  her  parents 
or  by  the  household  community  to  which  she  belonged  'V  con- 
sisted originally  (so  long,  namely,  as  women  were  incapable  of 
holding  property)  simply  of  the  "  wife's  supply  of  clothing  and 
adornments."  -  Jewels,  festive  dresses,  ornaments  such  as  mir- 
rors, combs,  etc.,  —  the  "  ornamenta  muliebria  ",  "  matronalia  ", 
"  matrimonialia  ",  —  made  up  its  content.  An  old  native  ex- 
pression for  it  was  "  Gerade  " ;  though  first  used  in  the  Saxon 
legal  sources  of  the  age  of  the  Law-Books,  this  is  already  sug- 
gested in  the  Prankish  period  in  the  Thuringian  "  rhedo  "  and 
the  Burgundian  "  malahereda."  The  "  Gerade "  was  a  gift, 
customary  but  nevertheless  essentially  voluntary.  As  just 
mentioned,  even  in  the  Frankish  period  it  no  longer  passed  into 
the  husband's  ownership.  With  the  recognition  of  the  herital 
capacity  of  women  their  marriage  portion  became  more  extensive 
than  the  objects  belonging  to  the  paraphernalia  ("  Gerade  ") 
proper.  It  was  extended  first  to  the  chattels  that  were  given 
with  the  wife,  and  by  which  she  was  indemnified  for  her  renuncia- 
tion of  claims  in  her  father's  property ;  and  later  to  lands.  The 
marriage  portion  already  shows  this  character  in  the  000  s  among 
the  Lombards,  whose  "  faderfio  "  even  then  included  mone\'  and 
immovables  and  was  regarded  as  a  herital  composition.  In  the 
other  racial  branches  the  change  took  place  only  later.  During 
the  existence  of  the  marriage  other  acquisitions  of  property  might 
be  added  to  the  dowry ;  particularly,  in  case  it  was  not  a  herital 
comi)osition,  the  portion  of  her  j)arents'  heritage  later  accruing 
in  her  favor,  and  further,  among  most  Germanic  racial  branches, 
presents. 

(2)  The  dower  ("  Wittum  ").     This  was  a  gift  by  husband  to 

'  Brunnrr,  "Grundziige"  (5th  ed.),  22G. 
2  Schroder,  "Lehrbuch"  (5th  ed.),  318. 

624 


Chap.  XI]  MARRIAGE  [§  94 

wife  which  w^as  developed  from  her  purchase  price,  and  which  was 
long  regarded  among  the  Franks,  the  Visigoths,  and  the  North 
Germans  (and  doubtless  originally  among  all  Germanic  races) 
as  a  necessary  and,  indeed,  the  principal,  token  of  a  legal  mar- 
riage.^ In  the  Latin  sources  this  payment  by  the  husband  to 
the  wife  bears  the  name  "  dos  ".  As  Tacitus  (Germ.  18)  already 
tells  us,  among  the  Germans  the  "  dos  "  w^as  not  brought  b\'  the 
wife  to  the  husband,  but  by  the  husband  to  the  wife ;  a  state- 
ment which,  however,  certainly  rests  upon  a  misunderstanding  to 
the  extent  that  this  gift  was  not  yet  given,  at  that  time,  to  the 
bride  herself  but  to  her  kindred  {supra,  p.  598).  The  peculiar 
change  in  the  meaning  of  the  word  "  dos  "  was  mainly  due  to 
the  influence  in  the  oldest  Frankish  law  of  the  "  donatio  ante 
nuptias  ",  which  was  probably  adopted  by  the  Roman  law  from 
the  legal  systems  of  the  provinces,  and  which  in  the  later  Roman 
period  ordinarily  preceded  the  delivery  of  the  "  dos  "  and  was 
returned  as  the  "  dos  "  by  the  wife  to  the  husband.  It  was  there- 
fore known  as  a  "  donatio  ante  nuptias  in  dotem  redacta  " ;  and 
this  may  eventually  have  led  to  the  use  of  the  word  "  dos  "  to 
designate  the  husband's  gift.  In  the  earlier  period  the  "  Wit- 
tum  ",  which  was  intended  to  serve  the  wife  for  maintenance  in 
widowhood  after  her  husband's  death,  consisted  among  the 
wealthier  classes  of  chattels  (money,  cattle,  serfs).  Among  the 
propertied  classes  of  the  Franks  the  chattel  "  dos  "  was  replaced, 
at  the  latest  in  the  600  s,  by  a  "  dos  "  of  immovables  which  was 
ordinarily  delivered  by  a  "  traditio  cartae  "  (supra,  pp.  24Aet  seq.). 
This  was  the  "  dos  conscripta."  As  already  stated,  dower  was 
a  gift  legally  necessary  to  the  creation  of  a  fully  valid  marriage. 
In  case  it  was  not  fixed  by  agreement,  .the  wife  was  given  a  claim 
for  dower  to  an  amount  statutorily  determined,  — the  "  dos  legi- 
tima."  In  the  older  Salic  Law  a  third  of  the  husband's  movable 
and  immovable  property  (the  Salic  "  tertia  "  and  the  "  douaire  " 
of  the  French  medieval  law)  belonged  to  the  wife  as  dower. 

(3)  The  morgive  ("  Morgengabe  ",  morning-gift). — The  cus- 
tom in  accord  with  which  the  husband  made  a  present  to  his 
young  wife  on  the  morning  after  the  bridal  night  goes  back  to 
the  earliest  times ;  it  may  be  that  it  was  developed  without  any 
reference  to  marriage,  and  persisted  as  a  remnant  of  pre-marital 

1  Ficker,  "Untersuehuiigen",  III,  350,  cites  as  authority  for  this  the 
"Landrecht"  of  the  county  of  Saarbriick  (1321?),  in  which  the  husband 
is  required  to  give  his  wife  dower  in  order  that  she  may  not  be  rej^udiated 
after  his  death  by  the  children  and  heirs  or  be  taken  for  a  servant-maid, 
or  for  a  Ught  woman  who  had  been  Uvijig  with  him  in  dishonor. 

625 


§  94]  FAMILY    LAW  [BoOK   IV 

conditions.^  Tliis  morglve  ("  donum  matutinum  ")  long  pre- 
served its  original  character  of  a  "  pretium  virginitatis  " ;  for 
which  reason  the  rnle  still  j^revailed  in  places  in  the  Middle  Ages 
that  no  morgi\'e  was  due  to  a  widow  who  remarried,  bnt  on  the 
contrary  must  be  paid  by  her  in  case  she  married  an  innocent 
youth.  So  long  as  the  wife  did  not  receive  the  dower  herself,  and 
even  afterwards  when  no  dower  was  delivered  to  her  but  only  a 
morgive,  —  that  is  in  cases  of  unlawful  and  unequal  marriages 
(which  for  this  very  reason  were  known  as  "  morganatic  "  — 
supra,  p.  99), — the  morgive  satisfied  at  the  same  time  that  pur- 
pose of  securing  the  wife's  position  under  the  property  law  which 
was  satisfied  in  other  cases  by  dower.  When  existing  concur- 
rently with  dower  it  possessed  merely  the  ethical  significance 
indicated.  Perhaps,  however,  it  served  a  legal  purpose  even  then, 
namely  as  a  public  notification  of  the  consummation  of  the  mar- 
riage by  cohabitation.^  For  this  reason  some  legal  systems,  for 
example  the  Alamanian  folk-law  and  the  Sachsenspiegel,  provided 
in  special  rules  how  the  wife  must  prove  the  receipt  of  the  morgive, 
in  case  of  dispute;  namely  by  independent  oath  ("  Eineid  ") 
given  on  breast  and  plait  of  hair,  which  among  the  Alamanians 
was  known  as  "  nasthait  "  (perhaps  from  the  lace,  "  Nestel  ",  that 
held  the  dress  together  at  the  breast).  The  morgive  was  often 
delivered  in  large  amount  even  in  addition  to  the  dower,  but 
among  many  racial  branches  it  became  merged,  in  time,  with 
the  dower  in  a  single  gift.  This  was  the  case,  notably,  among 
the  Lombards,  where  this  gift  ordinarily  consisted  of  a  fourth 
part  of  the  husband's  property  (the  Lombard  "  quarta  "). 

(Ill)  Legal  Relations  during  the  Existence  of  Marriage.  (1) 
The  ordinary  form  of  the  marital  community  of  property  in  the 
folk-laws  was  that  the  ownership  of  the  wife's  estate,  constituted 
of  the  portions  above  indicated,  was  not  in  the  husband,  but  in 
the  wife.  The  husband,  however,  l\v  virtue  of  his  mundium,  held 
possession  of  all  the  wife's  property :  as  a  result  of  the  marriage 
the  property  of  the  bride  was  delivered  to  him,  and  he  like- 
wise held  in  his  own  hand  his  gifts  to  the  bride.  Li  this  manner, 
the  distinct  ownership  of  the  property  being  preserved,  but  the 
entire  marital  estate  united  in  the  possession  of  the  husband, 
the  result  was  that  as  early  as  in  the  folk-laws   the   original 

>  Fickcr,  op.  cit.,  ITI,  390. 

2  This  suKpostion  is  iiiado  by  Fockema-Andrene,  "Iloxoiirl  ncderlandsch 
burperlijk  reriht",  II,  107:  "man  crkonde  door  de  morgengave,  dat  de 
bijslap  had  plaats  gehad." 

626 


Chap.  XI]  MARRIAGE  [§  94 

undivided  property  had  been  replaced,  in  the  main,  by  a  system 
of  community  property.  This  has  been  variously  known  as  that 
of  a  "  Giiterverbindung  "  (Bluntschli,  Heusler),  " Giitereinheit " 
(Gerber,  Beseler,  von  Martitz,  Gengler),  or  "Giiterscheidung" 
(Brunner), —  "combined",  "unsevered",  or  "several"  estates.^ 
But  it  is  usually  designated  by  the  name,  certainly  illogical,  of 
"  administrative  community  "  ("  Verwaltungsgemeinschaft  "), 
that  is  an  administration  by  the  husband  of  the  entire  commu- 
nity (Schroder), — the  essential  nature  of  which  is  found  in  a 
mere  physical  union  of  the  two  portions  of  the  marital  property, 
which  does  not  result  in  any  legal  community  of  the  spouses 
with  reference  thereto.  The  husband,  thus  receiving  the  seisin 
of  the  wife's  estate,  received  with  it,  on  the  one  hand  the  right  to 
take  the  profits,  and  on  the  other  hand  the  duty  of  administration. 
His  own  property  he  held  in  usufruct  and  administered  as  owner ; 
that  of  his  wife  as  her  mundium-holder  or  guardian  ("  Vormund  "). 
Thanks  to  this  seisin  "  in  mundium  "  ("  zu  rechter  Vormund- 
schaft  ",  "  of  guardianship  "),  as  it  was  customary  to  say  in  the 
later  Middle  Ages,  he  could  control  his  wife's  entire  estate. 
He  could  even  alienate  her  chattels  independently;  but  he  re- 
quired her  cooperation  for  the  alienation  of  her  lands.  His  con- 
trol of  his  own  property  was  restricted  to  the  extent  that  he  may 
have  given  his  wife  rights  therein ;  as  was  the  case,  for  example, 
with  the  "  dos  conscripta  ",  the  Frankish  "  tertia  ",  and  the 
Lombard  "  quarta."  On  the  other  hand,  the  wife  could  not 
dispose  of  anything  inter  vivos,  with  the  exception  of  the  para- 
phernalia, without  the  consent  of  her  husband.  The  wife's  estate 
was  not  liable  for  her  husband's  obligations. 

(2)  Some  of  the  legal  systems  of  the  Frankish  period  had  already 
departed  from  this  principle  of  distinct  estates  to  the  extent  cf 
recognizing  a  true  legal  community  as  respects  so-called  acquests 
("  Errungenschaften  "),  —  that  is,  such  property  as  was  acquired 
by  the  spouses  during  marriage,  by  labor  or  by  juristic  act,  for 
value ;  an  idea  also  rejflected  in  the  dower,  which  consisted  of  a 
fraction  of  the  husband's  property.  Whereas  the  majority  of 
legal  systems  treated  the  acquests  as  falling  under  the  ownership 
of  the  husband,  the  Salic  and  Ripuarian  systems,  by  statutory 
recognition  of  a  practice  of  customary  law,  conceded  to  the  wife, 
in  addition  to  the  "  dos  "  of  movables  (but  not  in  addition  to 
the  "  dos  conscripta  ")  and  the  morgive,  an  independent  right  in 
a  third  of  the  acquests.^  Further,  among  the  Westphalians  the 
1  Z\  R.  G.,  XVI,  OG.  2  "Lex  Ribuaria",  37,  1. 

627 


§  94]  FAMILY    LAW  [BoOK   IV 

wife  received  half  of  the  acquests,  whereas  among  the  Ostphahans 
and  the  Angrivarians  she  was  obhged  to  content  herself  with  the 
"  dos  " ;  ^  in  which  connection  it  is  disputed  whether  the  West- 
phalian  acquest-community  existed  only  when  a  child  was  born 
to  the  marriage  and  destroyed  ("killed")  the  "dos",  —  in 
this  case  a  dower  ("  Wittum  ")  consisting  of  a  life-portion 
("  Leibzucht  "),  —  by  its  birth  (Schroder),  or  whether  it  also 
existed  in  childless  marriages,  that  is  in  addition  to  the  claim  to 
the  "  dos  "  (Brunner,  Ileusler). 

(IV)  Legal  Relations  after  Dissolution  of  Marriage.  —  If  the 
marriage  was  dissolved,  particularly  if  one  of  the  spouses  died, 
the  marital  property  which  until  then  was  physically  united  in 
the  seisin  of  the  husband  became  separated  into  its  legal  por- 
tions. The  consequences  of  this  varied  according  as  the  husband 
or  the  wife  died  first,  and  according  as  the  marriage  was  "  inher- 
ited "  or  "  unherited  " ;  that  is,  according  as  it  was  or  was  not 
survived  by  at  least  one  child  born  in  wedlock.  Under  many 
legal  systems  the  important  question  was  whether  the  marriage 
hafl  been  fruitful,  —  that  is,  whether  a  living  child  had  been 
brought  into  the  world  as  a  result  of  it ;  for  certain  legal  conse- 
quences were  dependent  upon  this  fact,  even  though  the  child 
later  died  before  its  parents.  We  must  doubtless,  with  Brunner, 
explain  this  peculiar  institute  by  the  fact  that  the  birth  of  a  child 
deprived  the  husband  of  the  possibility  of  dissolving  the  marriage 
for  sterility  of  his  wife.  After  this,  it  was  a  natural  step  to  recog- 
nize a  closer  community  between  the  spouses. 

(1)  After  the  hmhand's  death  the  dower  fell  to  his  widow  in 
accord  with  its  appointed  end  of  serving  as  her  maintenance,  and 
similarly  the  morgive.  In  many  cases,  however,  it  was  received 
merely  as  inalienable  property  ("  Eigentum  ")  for  life,  inasmuch 
as  these  gifts,  in  case  of  an  "  unherited  "  marriage,  reverted 
after  the  death  of  the  widow  to  the  kindred  of  the  husband,  as 
the  giver  (reversionary  right  =  "  Riickfallsrecht  ",  known  in  the 
later  French  law  as  "  droit  de  retour  ")  ;  whereas  in  case  of  an 
"  inherited  "  marriage  they  were  sequestered  for  the  children. 
Whatever  else  belonged  to  the  wife,  —  her  marriage  portion, 
and  other  property  acquired  by  inheritance  or  gift,  —  was  thence- 
forth subjected  to  her  independent  ownership.  Among  the  West- 
phalians,  in  case  of  a  sterile  marriage  the  "  dos  "  was  given  to 
the  widow  for  life  and  reverted  after  her  death  to  the  giver  or  his 
heirs;  in  case  of  a  fruitful  marriage,  she  received  as  compensation 
■  "Lex  Saxonum",  47,  48. 
628 


Chap.  XI]  MARRIAGE  [§  95 

for  the  destruction  of  the  ''  dos  "  worked  by  the  birth  of  a  cliild 
some  indemnity,  as  for  example  the  right  for  hfe  to  hve  on 
and  enjoy  the  usufruct  of  the  lands  of  her  dead  husband. 
Among  the  Ostphalians  and  Angrivarians  the  same  rule  existed, 
in  case  of  a  sterile  marriage,  as  for  the  Westphalian  widow.  But 
among  them  the  widow  also  received  a  "  dos  "  in  case  of  a  fruitful 
marriage,  with  the  difference  that  a  reversion  was  here  not  recog- 
nized, the  "  dos  "  falling  either  to  her  children,  or,  if  none  survived 
her,  to  her  nearest  kindred.  Everyw^here,  so  long  as  she  remained 
single,  the  widow  was  ordinarily  given  a  right  to  live  on  the  lands 
of  her  dead  husband  which  had  been  devised  to  the  children. 

(2)  After  the  loife's  death  the  morgive  always,  and  the  dower 
in  case  of  an  "  unherited  "  marriage,  reverted  to  the  widower, 
as  the  giver;  on  the  other  hand,  in  case  of  an  "  inherited  "  mar- 
riage the  dower  fell  to  the  children.  In  case  of  a  sterile  marriage 
the  widower  was  bound  to  return  the  dowry  to  the  donor  thereof 
or  to  his  heirs ;  on  the  other  hand,  under  the  law  of  the  Alaman- 
ians  and  Bavarians,  he  retained  for  life  the  property  of  the  wife, 
including  the  dowry,  when  a  living  child  had  been  born.  A  differ- 
ent rule  prevailed  among  the  Lombards,  where  the  husband,  as 
the  holder  of  the  mundium,  was  the  sole  heir  of  his  wife. 

§  95.  The  Law  of  Marital  Property :  (2)  The  Medieval  Sys- 
tems. (I)  General  Development  and  Common  Principles  of  the 
Medieval  Systems.  (1)  The  administrative  community  and  the 
community  of  goods.  —  In  the  post-Frankish  period  the  develop- 
ment of  the  marital  community  of  goods  followed  various  lines. 
Some  legal  systems  clung  to  the  rule  of  the  folk-laws;  that  is, 
to  the  purely  physical  union  of  the  entire  marriage  property  in 
the  hand  of  the  husband,  which  involved  no  legal  community 
between  the  spouses.  Others,  on  the  other  hand,  went  further  in 
the  direction  of  extending  the  wife's  property  rights,  abandoning 
the  distinction  of  her  special  estate,  uniting  this  with  that  of  the 
husband  into  a  collective  ("  Gesamt  ")  estate,  and  conceding  to 
the  wife  the  same  property  rights  in  this  collective  estate  as  to 
the  husband.  With  this  step,  those  legal  systems  of  which  the 
last  was  true  became  distinct,  as  systems  of  community  of  goods 
("  Giitergemeinschaft  ",  "  Guterverbindung  ",  "  Giiterschei- 
dung  ")  from  those  that  maintained  a  mere  administrative  com- 
munity ("  Verwaltungsgemeinschaft").  A  community  of  goods 
signified,  therefore,  an  intimate  union  into  an  indivisible  whole 
of  the  individual  pieces  of  property  that  were  derived  from  hus- 
band and  from  wife,  the  whole  being  subject  to  their  mutual 

629 


§  95]  FAMILY    LAW  [BoOK   IV 

rights  of  collective  ownership.  The  wife  was  given,  here,  the 
same  rights  in  the  husband's  property  included  in  the  collective 
estate  as  he  possessed  in  her  property.  If  this  community  ex- 
tended to  all  property  of  the  spouses  men  spoke  of  a  "  general  " 
conininnify  of  goods.  But  the  community  might  also  be  limited 
to  certain  pieces  of  property,  special  estates  of  each  spouse  be- 
ing distinguished  alongside  the  common  property  of  the  two,  — 
which  was  a  "  liuiited  "  comDiunify  of  goods.  In  the  case  of  the 
acquest-community,  merely  the  acquests,  —  that  is  (above,  p.  627) 
property  acquired  during  marriage  by  labor  or  by  juristic  act  for 
value,  —  fell  into  the  collective  estate ;  in  the  case  of  a  chattel 
community,  merely  the  chattels  brought  into  the  marriage  and 
the  acquests  thereafter  acquired. 

Economic  relations,  and  ethical  factors  associated  with  these 
were  determinant  of  the  preservation  of  the  administrative  com- 
munity or  the  adoption  of  the  community  of  goods.  As  Heusler 
has  convincingly  shown,^  the  old  idea  of  family-property  ("  Fami- 
lienvermogen  ")  remained  vital  among  large  masses  of  the  rural 
population,  especially  in  Northern  Germany ;  and  this  even  after 
daughters  had  become  entitled  to  inheritance  in  lands.  Chattel 
property  long  continued  to  play  only  an  unimportant  role  in  these 
regions  ;  the  economic  and  social  position  of  families  was  depend- 
ent upon  family-lands  ("  Familiengut  "),  which  were  protected 
against  alienation  and  disintegration  by  the  heirs'  rights  in  ex- 
pectancy and  rights  of  co-alienation  (supra,  pp.  304  et  seq.),  and 
which  were  inherited  by  generation  after  generation.  We  can 
therefore  understand  that  even  as  regards  those  lands,  portions 
of  the  family  possessions,  which  the  daughters  took  with  them  as 
marriage  portions,  there  was  no  definitive  renunciation  ;  they  con- 
tinued to  be  regarded  as  part  of  the  family  lands.  They  could 
not  be  united,  therefore,  with  the  husband's  property  into  a  legal 
entity ;  they  never  fell  to  him,  but  were  either  inherited  by  the 
children,  or  in  case  of  his  wife's  death  without  children  reverted 
to  her  family.  This  treatment  of  the  property  brought  by  the 
wife  into  marriage  was,  however,  not  limited  to  her  landed  prop- 
erty. For,  as  Huber  remarks,^  in  the  maintenance  of  this  divi- 
sion between  the  wife's  and  the  husband's  property  there  was 
reflected  at  the  same  time  a  certain  mode  of  thought,  a  prone- 
ness  to  the  preservation  of  traditional  matters,  whose  influence 
might  also  be  felt  in  cases  where  the  wife  brought  no  lands  into 

'  "Institutionen",  II,  303  el  sea. 
2  "Schw.  Privatroc'ht",  IV,  393. 

630 


Chap.  XI]  MARRIAGE  [§  95 

the  marriage.  It  was  because  of  this  conservative  attitude  of 
mind  that  no  necessity  was  felt,  under  the  legal  systems  now  in 
question,  of  giving  the  wife  rights  in  her  husband's  property. 

On  the  other  hand,  in  those  regions  and  among  those  classes 
of  the  population  where  the  chief  part  of  the  marital  property 
did  not  consist  of  landed  possessions  inherited  through  generations, 
but  of  acquests,  a  tendency  prevailed  to  develop  an  intimate 
fusion  of  the  property  of  the  two  parties  into  a  more  or  less  com- 
prehensive community  of  goods.  Already  in  the  Prankish  period 
the  acquests  had  caused  the  abandonment,  in  some  legal  systems, 
of  the  system  of  separate  estates.  That  they  played  such  a  part 
can  be  readily  understood.  For  "  where  the  property  is  consti- 
tuted, changed,  and  enlarged,  by  the  activity  and  labor  of  the 
parties,  the  fusion  of  the  wife's  property  with  the  estate  of  her 
husband  is  materially  facilitated."  ^  The  influence  of  this  tend- 
ency was  felt,  above  all,  in  the  cities.  In  marriages  of  burghers, 
artisans,  and  merchants  "  contracted  between  the  different  ele- 
ments, old  and  newly  immigrated,  of  the  city  population  ",  the 
idea  of  a  family-estate  naturally  became  less  prominent,  since 
they  ordinarily  founded  an  entirely  new  house,  with  an  inde- 
pendent economic  basis.  IMuch  the  same  was  true  of  marriages 
among  the  servile  ("_horigen  ")  classes. 

The  movement,  however,  by  no  means  proceeded  in  such  man- 
ner that  the  circumstances  determining  it  could  have  created  the 
three  systems  just  named  in  forms  everywhere  identical.  The. 
administrative  community,  the  limited,  and  the  general  com- 
munity of  goods,  are  not  types  of  the  medieval  law  of  marital 
property  in  the  sense  that,  —  to  use  Heusler's  words,"  —  "all 
legal  systems  of  marital  estates  are  to  be  forced  into  these  three 
classes,  and  that  all  brought  into  one  class  have  exactly  the  same 
content,  precisely  as  all  personal  servitudes  may  be  grouped  under 
'  ususfructus  ',  '  usus  ',  '  habitatio  ',  and  '  operse  ',  thereby  re- 
ceiving for  all  time  a  fixed  and  definite  content."  The  adminis- 
trative community  and  the  limited  and  the  general  community 
of  goods  are,  rather,  mere  generalizations  for  the  grouping  of  those 
legal  systems  in  which  there  appear  more  or  less  clear  tendencies, 
respectively,  toward  the  separation  or  the  union  of  the  two  estates. 
There  existed  in  the  INIiddle  Ages,  not  precisely  three  but  an  infi- 
nite luunber,  of  legal  systems  of  marital  property.  There  did 
exist,  however,  only  two  "  ]Motive  ",  two  principles  which  made  it 
possible  in  theory  to  assign  these  infinite  variations  to  one  or  the 
1  Heusler,  "Institutionen",  II,  304.  2  Qp.  cit.,  II,  365. 

631 


§  95]  FAMILY    LAW  [BoOK   IV 

Other  of  those  systems.  Which  of  these  principles  predominated 
in  a  given  legal  system  depended,  as  already  remarked,  primarily 
upon  general  economic  conditions;  and  the  great  diversity  of 
these  naturally  resulted  in  a  great  variety  of  systems  of  marital 
estates.  When  these  appear  to  us  (as  they  often  do)  to  be  an  ar- 
bitrary combination  of  different  legal  rules,  this  may  frequently 
be  due,  therefore,  merely  to  the  fact  that  the  actual  foundations 
are  no  longer  discernible.  Moreover,  there  was  another  circum- 
stance that  greatly  furthered  diversity  of  development;  namely 
the  fact  that  systems  of  marital  property  were  very  often  carried 
from  place  to  place.  The  colonists  who  removed  to  Eastern 
Germany,  especially,  took  with  them  into  their  new  home  their 
native  laws,  and  the  cities  that  were  there  founded  were  endowed 
with  the  marital  property  law  of  the  mother-cities.  In  such 
cases  there  might  result  a  very  different  development  upon  the 
old  and  common  basis. 

(2)  The  "  viundium  "  of  the  husband.  —  But  however  diver- 
gently the  development  proceeded,  the  old  mundium  of  the  hus- 
band was  preserved  in  all  medieval  systems  of  marital  property 
as  the  basis,  also,  of  the  spouses'  relations  under  the  property  law. 
Whether  ownership  by  the  wife  was  recognized  as  respected  her 
property,  or  a  collective  ownership  of  collective  property  was 
conceded  to  her  with  her  husband,  the  rule  always  prevailed  that 
the  husband  was  "  steward  "  and  "  master  "  of  his  wife  {supra, 
p.  G19)  in  the  law  of  marital  projjerty.  This  marital  stewardship 
("  Ehevogtei  ")  of  the  husband  had  the  effect,  in  all  systems,  of 
subjecting  the  wife  to  his  will.  Everywhere,  she  was  incapable 
of  independent  action,  and  independent  control  of  her  own  prop- 
erty, without  his  consent ;  everywhere,  the  administration  of  the 
collective  marital  property  belonged  to  him.  We  may  therefore, 
with  Heusler,^  perceive  in  the  statement  of  the  Sachsenspiegel, 
"  man  unde  wif  ne  hebbet  nein  getveiet  gut  to  irme  live  "  (I,  31, 
§  1),  —  by  which  was  meant  that  the  property  of  the  wife  passed 
to  the  hand  of  the  husband,  —  the  fundamental  principle  that 
controlled  the  entire  medieval  German  law  of  marital  j)roperty. 
Nor  was  this  by  any  means  one  peculiar  to  the  administrative 
community;  the  Sachsenspiegel,  whose  system  is  based  upon  the 
community  of  goods,  repeats  it  in  almost  the  same  words  :  "  man 
unde  wip  mugen  niht  gehaben  dehein  guot  gezweihet  "  (W,  33 ; 
L,  34),  Everywhere,  accordingly,  the  husband  held  the  seisin  of 
his  wife's  property.     And  in  this  seisin  "  in  mundium  ",  as  it  is 

1  Op.  cil.,  II,  380. 
632 


Chap.  XI]  MARRIAGE  [§  95 

called  by  the  Sachsenspiegel/  there  is  expressed  an  idea  common 
to  all  legal  systems  of  marital  property,  which  loses  authority 
only  where  reservations  in  favor  of  the  wife  have  been  made  by 
express  contractual  provision.  Nowhere  did  German  legal  sys- 
tems accept  the  principle  of  the  Roman  law  of  dotal  property, 
which  not  only  kept  the  property  of  husband  and  wife  legally  dis- 
tinct, but  also  conceded  to  the  latter  the  management  of  her  own 
property.  On  the  contrary  the  German  wife  was  unable  to 
affect  by  independent  action  the  marital  property.  If  she  con- 
tracted debts  unbeknown  to  her  husband,  or  concluded  other 
contracts  without  his  consent,  this  bound  neither  the  property 
of  the  husband  nor  that  of  his  wife  of  which  he  held  the  seisin ; 
if  she  alienated  without  his  consent  and  cooperation  things  be- 
longing to  the  marital  estate,  the  husband  could  demand  them 
back,  without  more  ado,  from  the  acquirer.  An  independent 
dispositive  power  was  conceded  her  onh'  as  respected  transactions 
of  everj^day  life,  necessary  for  the  conduct  of  the  household. 
Thanks  to  this  "  key-power "  ("  Schliisselgewalt  ")  she  could 
contract  debts  of  small  amount,  limited  by  statute;  and,  sim- 
ilarly, she  bound  her  husband  by  transactions  concerning  articles 
intended  for  her  personal  use  (veils,  cloth,  and  flax ;  dresses, 
jewels,  and  distaffs).  In  case  of  the  sickness  or  absence  of  the 
husband,  as  well  as  in  other  cases  of  necessity,  her  dispositive 
powers  were  increased ;  also,  the  administration  of  the  property 
might  be  withdrawn  from  the  husband  by  a  court  because  of  his 
poor  management,  and  in  this  case  his  power  passed  to  his  wife, 
at  least  wherever  sex-guardianship  no  longer  existed.  Women 
engaged  in  commerce  and  trade,  —  who  carried  on  an  industry 
with  the  consent  of  their  husbands,  —  were  everywhere  freer. 

(3)  Finally,  reference  must  be  made  to  a  fact  which  is  univer- 
sally characteristic  of  the  medieval  German  law  of  marital  prop- 
erty; namely,  that  the  statutory  law  could  be  supplemented  or 
altered  in  a  great  extent  by  marriage  contracts,  which  were  them- 
selves in  large  part  an  embodiment  of  customary  law  that  had 
long  been  in  a  state  of  change.  These  marriage  contracts  ("  Ehe- 
vertrage  ",  "  Eheabreden  ",  "  Ehestiftungen  ",  "  Gedinge  ", 
"  Eheteidinge  ",  "  Brautlaufsbriefe  ",  and  the  like;  marriage 
contracts,  agreements,  settlements,  etc.)  sometimes  referred  to 
the  gifts  which  should  be  made  by  the  wife  or  by  the  husband  for 
the  purposes  of  the  marriage.  In  these  cases  they  conformed  to 
the  prevailing  law  of  marital  property,  which  treated  them  as  a 
1  Sap.,  I,  31,  §  2.     VJ.  Heusler,  op.  cit.,  381. 

633 


§  95]  FAMILY  LAW  [Book  IV 

supplement,  partly  necessary  and  partly  customary,  to  its  own 
rules.  At  the  same  time  it  might  easily  happen  that  what  was 
originally  required  to  be  established  by  contract,  —  as  for  example 
the  reservation  of  ownership  in  the  wife's  marriage  portion,  — 
became  in  time  statutory  or  customary  law.  After  this  change  the 
necessity  of  special  arrangements  came  to  be  less  felt.  They  be- 
came dispensable  in  ordinary  cases  in  the  absence  of  extraordinary 
agreements  to  the  contrary,  and  were  preserved  only  among  the 
rich  and  prominent  classes,  where  it  was  necessary  to  regulate  ])ar- 
ticularly  complicated  relations.  Another  kind  were  marriage  con- 
tracts entered  into  for  the  purpose  of  amending  the  existing  law. 
In  so  far  as  this  Avas  not  absolute  in  its  nature  —  and  this  was 
usually  the  case  —  there  existed  here  also  complete  freedom  of 
contract.  The  general  rule  prevailed,  "contract  breaks  the  law 
of  the  land"  ("Gedinge  bricht  Landrecht").  Gratuitous  gifts, 
however,  also  continued  to  exist.  In  particular,  the  view  (already 
referred  to)  became  controlling  in  this  connection  that  the  birth 
of  a  child  changed  the  nature  of  the  marital  estate,  and  by  creat- 
ing a  closer  legal  community  under  the  property  law  between 
parents  and  children  prevented  any  arbitrary  disposition  of 
property.  This  was  expressed  in  the  legal  maxim,  "  begetting 
children  breaks  a  marriage  settlement"  (" Kinderzeugen  bricht 
Ehestiftung").  IMarriage  contracts  were  made  before  a  court 
or  before  witnesses  and  under  the  modern  legal  systems  exclu- 
sively in  writing,  usually  before  marriage,  and  preferably  with 
the  cooperation  of  kindred,  particularly  those  of  the  bride;  but 
they  were  also  permitted  during  marriage. 

(II)  Systems  of  Administrative  Community.    (1)  The  OsiphaJian\ 
law.     (A)  Husraxd's  estate  and  wife's  estate. — The  Ost- 
phalian-Saxon  law,  whose  national   (Territorial)  form  found  its! 
classical  expression  in  the  Sachsenspiegel,  and  whose  urban  form] 
was  embodied  par  excellence  in  the  Magdeburg  town-law,  re- 
tained with  slight  exceptions  the  old  administrative  community'  of  j 
the  folk-laws,  thereby  preserving  this  down  into  recent  times. 
The  words  above  quoted  (p.  632)  from  the  INIirror  give  a  striking  j 
expression  of  the  principle  that  the  wife,  together  with  her  prop- 
erty, became  subject  to  her  husband's  mundium ;  that  the  hus- 
band, in  return  for  conducting  the  business  and  carrying  the  bur- 
dens of  the  marriage,  received  seisin  "in  mundium"  in  his  wife's] 
property ;  and   that   consequently  the   marital   property  consti- 
tuted, to  that  extent,  an  "undivided  estate."     But  this  was  only! 
a  physical  union ;  as  respects  the  ownership,  the  different  parts] 

634 


Chap.  XI]  MARRIAGE  [§  95 

of  the  property  remained  distinct,^  This  was  unquaHfiedly  true 
of  land,  which  was  the  chief  form  of  property  under  the  agricul- 
tural conditions  of  Ostphalia,  and  as  respects  which  the  idea  of 
family-estates,  above  mentioned,  was  of  decisive  influence.  Just 
as  the  husband  remained  the  sole  owner  of  his  land,  so  the  wife 
remained  the  sole  owner  of  the  lands  brought  with  her  in  mar- 
riage; and  whatever  immovable  property  she  acquired  during 
the  marriage  by  inheritance,  gift,  or  exchange,  likewise  passed 
into  her  exclusive  ownership.  And  it  was  the  same  with  chattels. 
True,  the  statements  of  the  sources  referring  to  these  present 
great  difficulties,  for  which  reason  differences  of  opinion  exist  in 
respect  to  this  matter  that  have  not  yet  been  overcome.  The 
Saxon  law  distinguished  in  a  peculiar  way  a  certain  part  of  the 
marital  movable  property  by  designating  it  with  the  old  traditional 
name  of  "  Gerade  "  (paraphernalia),  using  the  word  in  a  technical 
sense.  The  paraphernalia  of  Saxon  legal  sources  consisted  "  of 
objects  intended  for  the  wife's  personal  use  and  of  objects  used 
by  her  in  her  management  of  the  household."  ^  The  sources  give 
exhaustive  lists  of  these.'^  Now  it  was  these  paraphernalia,  and 
not  the  chattel  property  actually  brought  by  the  wife  into  the 
marriage,  that  passed,  with  few  exceptions,  to  her  kindred  upon 
dissolution  of  the  same ;  whereas  all  objects  that  did  not  belong 
to  the  paraphernalia,  —  so-called  "  Ungerade  "  (non-parapher- 
nalia), —  passed  to  the  husband  or  his  heirs.  The  peculiar  thing 
here  was  that  the  economic  use  of  the  individual  things,  and  not 
their  origin,  was  decisive  of  their  legal  fortune  at  the  moment  mar- 
riage was  dissolved.  During  the  continuance  of  the  marriage 
it  was  therefore  impossible  to  say  what  chattels  would  finally 
be  recognized  as  property  of  the  wife.  For  this  reason  Heusler  ^ 
sees  in  the  treatment  of  the  Saxon  paraphernalia  an  element  of 
community. 

(B)  Legal  relations  during  the  continu.\nce  of  the  mar- 
riage. —  Thanks  to  his  seisin  "  in  mundium  ",  the  entire  marital 
property  was,  as  already  mentioned,  subject  to  the  husband's  ad- 
ministration and  usufruct.  Of  course  he  was  not  restrained  by  the 
assent  of  his  wife  in  the  disposition  of  his  own  property.  He  pos- 
sessed equally  unlimited  powers  of  disposing  of  all  chattels,  inclusive 
of  those  owned  by  his  wife,  —  he  could  alienate  her  chattels  with- 

1  Ssp.,  I,  31,  §  2. 

2  Brunner,  " Grundzuge "  (5th  ed.),  227  et  seq. 

3  For  example  Ssp.,  I,  24,  §  3. 
«  Op.  ciL,  II,  390  ct  seq. 

635 


§  95]  FAMILY    LAW  [BoOK   IV 

out  beint::  compelled  to  make  compensation  therefor ;  even  when  he 
bou^'ht  lands  with  his  wife's  money  they  became  his  property  and 
not  hers.  On  the  other  hand,  in  dispositions  of  his  wife's  lands 
he  was  bound  by  her  consent  and  that  of  her  next  heirs ;  only  in 
cases  of  actual  necessity  could  the  consent  of  the  wife,  when  lack- 
ing, be  made  good  judicially.  The  wife  was  denied  all  independent 
dis])ositive  powers  o\er  her  property.^  As  respects  the  treatment 
of  debts,  since  the  husband  could  freely  dispose  of  the  movable 
property  of  the  wife,  this  was  also  liable,  at  least  under  the  Magde- 
burg town-law,  to  his  creditors ;  on  the  other  hand,  of  course  the. 
wife's  hnmovable  property  was  not  so  liable.  As  respects  debts 
of  the  wife  contracted  before  marriage,  her  property  continued 
liable  for  these  during  the  nuirriage.  As  already  mentioned, 
she  could  not  be  made  liable  by  dispositions  of  the  marital  prop- 
erty undertaken  by  her  independently  while  married  ;  though 
doubtless,  after  dissolution  of  the  marriage,  she  could  be  held 
liable  through  her  property,  —  since  this  was  thereafter  again  in 
her  seisin,  —  for  debts  that  had  nevertheless  been  so  contracted. 

(C)  Legal  relations  after  dissolution  of  marriage.  — 
With  such  dissolution  there  resulted  a  division  of  the  marital  j^rop- 
erty,  in  which  connection  it  was  immaterial  under  the  Ostphalian 
law  whether  the  marriage  was  fruitful  or  sterile,  "  inherited  "  or 
"  unherited."  The  surviving  spouse,  therefore,  took  his  own 
immovable  property,  and  that  of  the  dead  spouse  went  to  the 
latter's  heirs.  As  respects  chattels  the  same  rule  prevailed ; 
only,  as  already  remarked,  the  wife  received  as  her  own  upon  the 
death  of  her  husband,  not  the  marriage  portion  ("  Heiratsgut  ") 
that  she  had  brought  into  the  marriage,  but  the  paraphernalia 
as  this  existed  at  the  moment  the  marriage  was  dissolved,  and 
which,  it  follows  from  what  has  been  said,  might  also  include 
articles  received  or  acquired  from  her  husband.  On  the  other 
hand  she  was  bound  to  deliver  to  her  husband's  heirs  whatever 
other  things  might  still  exist  of  those  included  in  her  do^^Ty ;  and 
all  acquests  also  were  included  in  the  exclusive  property  of  the 
husband,  — of  course  these  last  were  unimportant  under  rural 
conditions.  In  addition  to  the  paraphernalia  the  widow  received, 
for  the  purpose  of  enabling  her  to  continue  the  management  of 
the  household,  a  half  of  the  provisions  present  on  the  estate  at 
her  husband's  death, — the  so-called  "  Musteil  "  ("  cibaria  do- 
mestica  ") ;  and  she  also  had  the  right  to  remain  in  the  house  of 
her  dead  husband  until  the  end  of  the  thirtieth  day  and  to  live 

'  Ssp.,  I,  45,  §  2. 
636 


Chap.  XI]  MARRIAGE  [§  95 

at  the  expense  of  the  estate,  without  the  heir's  having  a  right  to 
expel  her  by  virtue  of  the  seisin  that  passed  to  him  upon  the 
husband's  death. ^  "  Until  the  thirtieth  day  and  on  that  day 
services  were  held  for  the  dead  in  the  church ;  during  this  time 
the  quiet  of  the  house  where  he  died  might  not  be  disturbed,  and 
the  widow,  freed  of  cares  for  shelter  and  subsistence,  should  enjoy 
a  quiet  stay  in  her  accustomed  home.  Only  with  the  thirtieth 
day  did  the  clearing  of  the  house  and  the  removal  of  her  things 
begin  ",  and  the  division  of  the  inheritance  take  place ;  and  this 
led,  under  manorial  conditions,  to  the  rule  that  similarly  "  by  the 
thirtieth  day  every  thing  must  be  settled  as  to  what  she  claims 
from  the  dead  and  the  heritage,  in  order  that  the  removal  of  the 
same  might  begin  immediately  upon  the  expiration  of  the  thirtieth 
day."  ^  If  the  wife  died,  the  husband  was  bound  to  deliver  the 
paraphernalia  to  the  daughter  or  to  another  nearest  female 
relative  of  the  wife,  —  the  so-called  "  niece's  paraphernalia  " 
("  Xiftelgerade  ") ;  and  this  even  when  the  existing  parapher- 
nalia had  been  received  or  acquired  from  him.  In  default  of 
female  kindred  the  niece's  paraphernalia  fell  to  the  court.  The 
husband  could  retain  for  himself  only  a  few  indispensable  house- 
hold articles :  bed,  table,  bench,  and  stool,  —  the  so-called 
"  Heerpfiihl."  ^ 

(D)  Contractual  law  of  marital  property.  —  The  statutory 
law  of  marital  property,  as  it  is  presented  in  the  Sachsenspiegel, 
sufficed  for  the  simple  economic  conditions  of  Ostphalia,  and  there- 
fore supplementary  contractual  agreements  were  necessary  only  to 
a  slight  extent.  Here  also,  however,  some  such  agreements  were 
customary.  Some  of  them  referred  to  marriage  gifts  from  the 
husband  to  the  wife  delivered  under  marriage  contract.  The  hus- 
band was  accustomed  to  deliver  to  his  wife  a  "  maintenance  " 
portion  ("  Leibzucht  ")  in  which  was  perpetuated  the  okl  "  dos  " 
of  the  "Lex  Saxonum  "  (sui^ra,  p.  G27) ;  it  was  originally  composed 
of  land,  and  later  also  of  money.  Though  the  ownership  of  such 
objects  remained  in  the  husband,  he  was  restricted  in  his  power 
of  disposing  of  them  by  the  end  to  which  they  were  dedicated, 
and  similarly  his  heirs  were  obliged  to  leave  them  to  the  widow 
for  usufruct  during  her  life.  Besides  the  "  Leibzucht  "  there 
was  also  preserved  the  old  custom  of  the  morgive.     According 

'  Ssp.,  T,  22,  §§  1,  3.  Homeyer,  "Der  Dreissigste",  in  Akad.  Wiss., 
Berl.,  " Abhandlungen "  (18G5) ;  Siegel,  "Der  Dreissigste,  insbesondere 
naeh  Hofreeht",  in  the  Krit.  Vj.,  VII  (1865),  275  et  seq. 

2  Heuslcr,  "  Institutionen",  II,  567  et  seq. 

3  Ssp.,  Ill,  38,  §  5. 

637 


§  95]  FAMILY    LAW  [BoOK    IV 

to  the  Sachsenspiegel  this  was  a  vohintary  gift  ("  Zuwendung  ") 
made  to  the  wife  under  contract ;  but  definite  Umits  were  set  to 
it.^  It  was  only  hiter  that  a  statutory  morgive  was  developed 
among  the  nobles.  According  to  the  Saxon  town-law  the  con- 
tractual ("  gelobte  ")  morgive  of  money  was  ordinarily  promised 
on  the  betrothal  day  in  the  family  circle,  the  bridegroom  binding 
himself  at  the  same  time,  however,  to  renew  ("  volfuren  ")  his 
promise  in  the  sacred  ("  gehegtes  ")  folk-court. 

The  legal  separation  of  the  j^roperty  of  the  two  parties  was  ill 
adapted,  in  itself,  to  secure  the  rights  of  the  wife ;  for  the  husband, 
by  virtue  of  his  large  dispositive  powers  over  the  marital  property, 
could  completely  destroy  the  rights  of  his  wife  by  sale  or  other 
alienation,  particularly  as  economic  conditions  became  increas- 
ingly those  of  a  money  economy.  Consequently,  contracts  for 
the  security  of  the  wife's  property  steadily  became  more  numerous. 
The  Sachsenspiegel  names,  as  such  a  means,  the  "  Ursale  ","  — 
that  is,  a  "  judicial  conveyance  of  the  husband's  lands  into  the 
hands  of  a  curator  of  the  wife,  in  ownership  or  in  pledge."  ^  The 
same  purpose  was  served  by  contracts,  developed  in  systems  of 
town-law,  that  gave  to  the  wife  a  reserved-estate  {"  Vorbehalts- 
gut  ")  that  did  not  become  subject  to  the  administration  of  the 
husband,  but  was  subject  to  her  own  administration  and  disposi- 
tion. It  also  was  conveyed  to  a  trustee  ("  Treuhander  ")  or 
curator.  These  contracts  served  the  purpose,  especially  in  the 
cities,  of  disintegrating  the  Territorial  legal  systems  of  parapher- 
nalia. For  such  law,  in  its  old  form,  was  actually  justified  only 
so  long  as  the  wife  brought  practically  only  paraphernalia  (aside 
from  land)  into  the  marriage  as  her  dowry. 

(2)  Other  systems  of  administrative  covimunity.  —  (A)  A  pure 
administrative  community,  or  system  of  distinct  marital  estates, 
prevailed  in  a  number  of  Swiss  legal  systems, — notably  in  those 
of  Zurich  and  Thurgau  and  in  the  original  cantons;  and  in 
even  a  clearer  form  than  in  the  Osti)halian  law,  because  the  insti- 
tute of  paraphernalia  was  unknown  to  them,  and  therefore  the 
chattel  estate  could  also  be  exactly  divided  according  to  the  origin 
of  the  chattels.  There  prevailed  here,  absolutely,  the  rule : 
"  wife's  property  shall  neither  wax  nor  wane  "  ;  that  is,  the  wife  or 
her  heirs,  when  the  marriage  was  dissolved,  should  receive  exactly 
that  which  she  took  unto  the  marriage,  or  its  value.  The  chattels 
which  she  brought  into  the  marriage  her  husband  was  bound  to 

'Ssp.,  I,  20,  §§  1,  8.  2  Ibid.,  44. 

»  Schroder,  "Lehrbuch"  (5th  ed.),  762. 

638 


Chap.  XI]  MARRIAGE  [§  95 

secure  by  his  lands,  —  "  Zu  Erb  und  Eigen  legen  "  ("  to  lay  upon 
heir  and  property  ") ;  that  is  "he  pledged  his  lands,  or  charged 
them  with  a  rent  equivalent  to  the  value  of  the  property  so  con- 
tributed, for  that  purpose."  ^ 

(B)  Finally,  under  some  legal  systems  the  administrative  com- 
munity was  not  recognized  generally  but  only  in  cases  of  "  un- 
herited  "  marriages.  This  was  the  case  in  the  Frisian  and  the 
Westphalian  law.  The  Westphalian  administrative  community 
was  originally  identical  with  the  Ostphalian  law  of  the  Sachsen- 
spiegel ;  but  the  paraphernalia  were  done  away  with  in  it  at  an 
early  day,  a  complete  statutory  division  of  marital  estates  being 
thereby  realized  in  the  case  also  of  chattels.  Quite  unlike  the 
Ostphalian  law,  however,  the  Westphalian  took  the  view  that  the 
wife  was  the  heiress  of  her  husband.  After  the  death  of  her  hus- 
band the  widow  received,  as  heiress,  in  addition  to  her  own  prop- 
erty that  reverted  to  her,  a  half  of  the  remaining  property,  con- 
stituted of  the  portion  brought  to  the  marriage  by  the  husband 
and  the  acquests;  and,  conversely,  in  case  of  the  predecease  of 
the  wife  the  husband  was  required  to  return  only  half  of  her 
property  to  her  heirs,  —  notwithstanding  that  he  was  not  ordi- 
narily designated  as  an  heir.  This  rule  was  observed,  notably,  in 
Soest  and  in  Miinster,  and  in  the  legal  systems  dependent  upon 
those  cities ;  and  above  all  in  the  Liibeck  law,  which  was  based 
upon  that  of  Soest. 

(Ill)  Systems  of  Marital  Community.  —  Unlike  the  legal 
systems  that  maintained  a  division  of  the  marital  property,  a 
unification  of  the  property  of  husband  and  wife  was  established 
in  most  parts  of  Western  and  Southern  Germany ;  that  is,  in  the 
greatest  portion  of  the  regions  of  the  Frankish,  Westphalian, 
Thuringian,  Swabian,  and  Bavarian  laws.  The  effects  of  this 
were  particularly  evident  in  case  of  dissolution  of  the  marriage, 
but  in  some  respects  even  during  its  continuance.  Moreover, 
the  community  existed,  —  in  so  far  as  no  special  estate  was 
reserved  by  marriage  contract,  —  by  force  of  law ;  sometimes  as 
respected  all  portions  of  the  marital  property,  sometimes  as  re- 
spected definite  portions  thereof,  and  sometimes  in  all  and  some- 
times only  in  "  inherited  "  or  fertile  marriages. 

(1)  Limited  community  of  goods.  —  The  Frankish  and  the  West- 
phalian law  had  recognized  the  wife's  rights  in  marital  acquests 
already  in  the  period  of  the  folk-laws ;    and  even  in  the  post- 
Frankish  period  of  the  Middle  Ages  the  Frankish  law  retained  an 
'  Heusler,  "Institutionen",  II,  331. 
639 


§  95]  FAMILY    LAW  [BoOK   IV 

acqiiest-communiiij  as  the  system  of  marital  property  that  took 
effect,  by  force  of  statute,  in  all  marriages.  This  Frankish  ac- 
quest-community also  became  the  dominant  ru.le  in  Thuringia, 
in  the  cities  of  the  Saxon  Ilarz,  and  in  the  greatest  part  of  Swabia, 
Bavaria,  and  Austria.  The  Frisian  law  recognized  it  as  applying 
to  "  inherited  "  marriages,  and  in  ])art  to  marriages  that  re- 
mained without  issue  after  the  exi)iration  of  a  year  ("  uberjalirige 
Ehen  ").  Many  legal  systems  also  extended  tlie  community  to 
the  chattels  brought  into  the  marriage  (community  of  chattels). 

(A)  Legal  relations  durinc;  marriage. —  In  all  these  legal 
systems  the  marital  estate,  constituted  either  of  the  acquests  alone 
or  of  the  entire  movable  property  plus  lands  later  acquired  as 
acquests,  was  a  solidary  mass,  a  collective  ownership  of  wliich 
inhered  in  the  two  spouses  "  in  undivided  shares,  which  were 
inseparable  during  the  continuance  of  the  community."  ^  The 
spouses  constituted  in  relation  to  this  collective  property  a  com- 
munity of  collective  hand.  Inasmuch,  however,  as  the  husband, 
as  the  head  of  the  marital  community,  enjoyed  a  marital 
stewardship  even  in  these  legal  systems,  he  controlled  in  them 
also  the  administration,  usufruct,  and  alienation  of  the  collective 
property.  On  the  other  hand,  precisely  as  in  the  systems  of  ad- 
ministrative community,  he  coukl  dispose  of  the  lands  standing 
in  the  separate  ownership  of  the  two  spouses,  —  even  of  his  own 
lands,  —  only  with  the  cooperation  of  his  wife,  —  that  is,  onlj'' 
with  collective  hand ;  from  which  it  follows  that  alienation  with 
collective  hand  was  not  in  itself  necessarily  indicative  of  an  exist- 
ing collective  ownership.  As  respects  the  special  estates  of  the 
two  spouses  existing  along  with  the  collective  estate,  —  in  other 
words,  primarily,  as  respects  the  lands  brought  into  the  marriage, 
—  the  same  principles  prevailed  as  in  the  administrative  com- 
munity ;  the  husband  held  the  seisin  of  the  wife's  special 
estate,  but  the  profits  of  the  acquests  accrued  in  this  case  solely 
to  the  collective  estate.  As  respects  liability  for  obligations,  some, 
as  obligations  of  the  collective  estate,  bound  both  the  community 
property  and  the  husband's  special  estate;  others  bound  only 
the  special  estate  of  the  wife.  The  obligations  of  the  collective 
estate  included  not  only  obligations  assumed  by  the  husband  in 
furtherance  of  marital  interests  and  by  virtue  of  his  dispositive 
powers  ("  community  ()l)ligations  ")  but  also  all  special  obliga- 
tions incurred  by  him  i)ersonally  (for  example,  even  his  ol)ligations 
for  torts) ;  also  the  wife's  obligations,  alike  those  incurred  before 
*  Gierke  in  HoUzendorff,  I,  538. 
G40 


Chap.  XI]  MARRIAGE  [§  95 

marriage  and  those  which  she  assumed  during  marriage  within 
the  authority  of  her  "  key-power  "  or  with  the  consent  of  her 
husband.  The  husband  was  hable  for  all  obligations  of  the  col- 
lective estate  not  only  with  the  collective  property  but  also,  as 
just  stated,  with  his  own  special  property ;  this  was  the  converse 
of  the  dispositive  power  that  was  accorded  to  him.  Under  the 
Frankish  legal  systems  a  widow  could  free  herself  from  this  lia- 
bility imposed  upon  the  collective  property,  —  for  which,  upon  the 
death  of  her  husband,  she  became  ipso  facto  liable,  —  "  by  lay- 
ing upon  the  death-bed  or  the  corpse,  or  upon  the  coffin  or  the 
grave  of  her  husband,  her  keys  or  her  girdle  (from  which  the  keys 
hung)."  ^  It  is  Brunner's  view  that  this  key-right  of  the  widow 
goes  back  to  the  idea  of  a  separation  under  the  property  law  after 
the  death  of  the  husband  {supra,  p.  614). 

(B)  Legal  relations  after  dissolution  of  marriage.  —  In 
case  of  an  "  unherited  "  marriage,  the  special  estates  of  the  spouses 
passed  to  the  sides  from  which  they  were  respectively  derived ; 
whereas  the  collective  estate  was  divided  between  the  survivor 
and  the  heirs  of  the  dead  consort.  The  division  was  effected  in 
accordance  with  the  old  Frankish  rule,  two-thirds  falling  to  the 
husband's  kindred  as  "  sword  "  or  "  spear  "  portion  and  one- 
third  to  the  wife's  kindred  as  a  "  spindle  "  or  "  distaff  "  portion  ;  or 
else  there  was  an  equal  division.  However,  the  surviving  spouse 
was  ordinarily  given  a  maintenance-portion  for  life  ("  Leibzucht  ") 
in  the  special  estates  and  the  acquest-share,  and  a  right  of  inherit- 
ance in  the  chattel-share  of  the  deceased  consort ;  and  some  legal 
systems  even  accorded  him  (or  her)  the  ownership  of  the  dead 
spouse's  share  of  the  acquests,  so  that  in  this  way  all  the  acquests 
and  chattels,  —  in  other  words  the  entire  collective  estate,  — 
passed  into  the  exclusive  ownership  of  the  survivor.  These  prin- 
ciples, which  prevailed  in  the  Frankish  law  as  respects  "  un- 
herited "  marriages,  became  established  in  the  Frisian  law,  though 
with  certain  variations,  in  the  case  of  "  inherited  "  marriages,  since 
the  Frisian  law,  as  already  mentioned,  recognized  a  community 
of  chattels  only  in  the  case  of  "  inherited  "  marriages,  and  an 
administrative  community  in  the  case  of  "  unherited  "  marriages. 

Moreover,  in  the  case  of  "  inherited  marriages'',  there  prevailed 
in  most  systems  of  acquest  and  chattel  community  the  so-called 
law  of  "  Verfangenschaft  "  ("  sequestration  ",  devolution).^     Ac- 

»  Brunner,  "Grundzuge"  (5th  ed.)  228,  "Geschichte",  I  (2d  ed.),  39. 
'  Mayer-Homberg,  "Zur  Entstehung  des  friinkischen  Verfaiigenschafts- 
rechtes"  in  Westd.  Z.  G.  K.,  XXXI  (1912),  1-133 ;   also  separately  under 

641 


§  95]  FAMILY    LAW  [BoOK   IV 

cording  to  this,  all  the  property  included  in  the  marital  estate 
was  divided  into  two  masses,  one  consisting  of  "  free  "  and  the 
other  of  the  "  sequestered  "  ("  verfangene  ")  property.  To  the 
"  free  "  property  belonged  all  the  chattels.  They  passed  to  the 
surviving  spouse,  whose  collective  ownership  theretofore  exist-, 
ing  was  accordingly  transformed  by  the  death  of  the  other  spouse 
who  had  held  with  the  survi\'or  in  collective  hand  ("  Gesamt- 
hander  ",  his  "  collective-hander  ")  into  an  absolutely  free  sole- 
ownership,  as  a  result  of  the  benefit  of  survivorship  characteristic 
of  rights  in  collective  hand  {supra,  p.  235)  so  that  he  could  dis- 
pose of  them  thenceforth  absolutely.  To  the  "  sequestered  " 
property  belonged  all  lands  which  the  spouses  had  })ossessed 
down  to  the  dissolution  of  the  marriage ;  including  those  that 
had  been,  during  the  continuance  of  the  marriage,  in  the  sole 
ownership  of  the  survivor.  Of  these  lands,  thus  sequestered  for 
the  children,  the  survivor  might  continue  to  enjoy  usufruct  and 
administration,  but  except  in  case  of  actual  necessity  he  (or  she) 
could  thereafter  alienate  them  only  with  the  children's  consent. 
Thus  the  children's  right  of  sequestration  (concerning  whose 
legal  nature  very  different  opinions  are  held)  effected  a  consoli- 
dation of  the  lands,  inasmuch  as  these  (even  those  that  Avere  before 
in  the  ownership  of  the  deceased),  as  well  as  the  chattels,  passed 
after  the  death  of  one  spouse  into  the  sole  ownership  of  the  sur- 
vivor, —  although,  to  be  sure,  an  ownership  limited  in  time,  namely 
for  life,  beyond  which  lay  the  irrevocable  claim  of  the  children. 
If  the  surviving  parent  remarried  he  took  with  him  into  the  new 
marriage  the  sequestered  pro])crty,  but  the  children  of  the  first 
marriage  alone,  and  not  the  children  of  the  second,  had  herital 
rights  therein.  On  the  other  hand  the  children  of  the  first  marriage 
were  fully  secured  by  this  right,  and  had  no  claim  to  other  prop- 
erty of  the  second  marriage.  In  order  to  avoid  this  unlike  treat- 
ment of  children  of  the  first  and  second  marriages,  which  was  felt 
to  be  unequal,  partitions  were  often  made  between  the  parent 
who  remarried  and  the  children  by  the  first  marriage  ("  Vor- 
kinder  ") ;  and,  in  connection  with  this  practice,  there  was  devel- 
oped, beginning  in  the  second  half  of  the  1200  s,  a  statutory  right 
of  partition  ("  Teilrecht  ")  which  was  "  a  wholesome  reform 
of  the  right  of  sequestration."  ^  It  compelled  the  parent  wha 
remarried  to  come  to  an  agreement  with  the  children  of  the  first 

the  title  "Studien  zur  Gesehichto  dos  Verfancensehaftsrcchtes,  T.  Band: 
Zur  Entstehune  dos  fninkischen  Vcrfanjjjenschaftsrechtes"  (1913). 
'  Schroder,  "Lehrbuch"  (5th  ed.),  759. 

642 


Chap.  XI]  MARRIAGE  [§  95 

marriage  and  to  deliver  them  immediately  a  portion  of  the  "  free  " 
and  of  the  "  sequestered  "  property.  Under  this  rule  the  parti- 
tion was  made  either  simply  by  halves,  or  upon  the  basis  of  sword 
and  distaff  kindred,  or  per  capita.  In  this  way  the  "  first  " 
children  were  definitively  satisfied,  and  the  parent  who  remarried 
took  into  the  new  marriage,  as  free  property,  the  portion  still 
remaining  to  him. 

(2)  The  general  community  of  goods.  —  As  already  remarked, 
many  medieval  systems  of  marital  property  established  not 
simply  a  limited  but  a  general  community  of  goods.  Some  of 
them  accomplished  this  by  extending  the  acquest  and  chattel 
community  to  the  entire  marital  property.  This  w^as  first  done 
in  the  Frankish  and  Westphalian  laws,  where  the  requirement 
that  dispositions  of  land  be  made  by  collective  hand  even  under  a 
limited  community  of  goods  (supra,  p.  640)  had  the  result  of 
developing  a  collective  ownership  of  the  spouses  in  those  portions, 
also,  of  the  marital  property.  In  many  places,  particularly  in 
the  cities  of  Frankish  and  Bavarian- Austrian  territory,  statutory 
recognition  of  this  form  of  marital  estate  originated  in  a  custom 
by  which  spouses  mutually  devised  their  entire  property,  to  one 
another.  The  general  community  of  goods  was  first  developed 
in  the  lowlands  of  the  upper  and  lower  Rhine  as  far  as  Holland  and 
Flanders,  as  well  as  in  Westphalia  and  Thuringia ;  from  these 
regions  it  spread  into  the  lowlands  of  the  Weser,  toward  Ham- 
burg and  Liibeck,  Mark  Meissen  and  Mark  Brandenburg,  Lausitz, 
Silesia,  Prussia,  Bohemia,  and  Moravia.  It  was  also  widely 
prevalent  in  the  regions  of  the  Swabian,  Bavarian,  and  Austrian 
laws,  and  was  introduced  into  many  cities  of  Magdeburg  law  in 
place  of  the  Saxon  paraphernalia.  A  few  legal  systems  regarded 
it  as  arising  only  when  a  child  was  born  from  the  marriage,  and 
as  determining  upon  the  death  of  all  children,  —  so,  for  example, 
the  Westphalian-Liibeck  law  that  spread  from  Soest.  This  con- 
sideration, however,  was  generally  disregarded,  following  the 
example  of  the  Frankish  law. 

(A)  Legal  relations  during  marriage.  —  The  general  com- 
munity of  goods,  in  its  legal  essence,  was  "a  community  in  col- 
lective hand  that  fused  the  entire  property  of  both  spouses  into 
one  entity,  their  shares  therein  being  undivided  and  uncollectible 
during  the  continuance  of  the  community."^  It  was  distinguished 
from  the  limited  community  of  goods  by  the  fact  that  the  com- 
munity attached  by  force  of  law  to  all  property  brought  into  the 
1  Gierke  in  Holtzendorff-Kohler,  I,  538. 
643 


§  95]  FAMILY    LAW  [BoOK   IV 

marriafje  or  later  acquired,  intimately  uniting  it  in  a  collective 
estate  belonging  equally  to  both  spouses.  There  existed,  there- 
fore, no  statutory  separate  estates ;  but,  on  the  other  hand,  there 
■was  nothing  to  prevent  the  spouses  from  reserving  particular 
pieces  of  property,  by  marriage  contract,  as  separate  property. 
Yet  even  under  this  system,  which  emphasized  most  decidedly 
the  equality  of  husband  and  wife  in  property  rights,  the  husband 
was  the  holder  of  the  mundium  and  the  head  of  the  marital  com- 
munity, and  therefore  alone  entitled  to  administer  and  represent 
it.  To  be  sure,  his  dispositive  power  was  variously  limited  in 
different  legal  systems.  Although  he  could  everywhere  dispose 
independently  of  the  chattels,  he  was  bound  in  most  systems, 
as  regards  the  lands,  to  secure  the  cooperation  of  his  wife ;  only 
a  few  allowed  him  to  act  with  entire  independence  as  to  them  also. 
As  for  the  treatment  of  obligations,  the  same  principles  prevailed 
as  in  the  case  of  the  limited  community  of  goods.  The  spouses 
constituted  with  respect  to  the  collective  property  a  community 
of  obligations  ("  Schuldengemeinschaft  ").  Obligations  binding 
the  collective  estate  included  all  obligations  assumed  by  the  hus- 
band, and  such  obligations  of  the  wife  as  were  incurred  either 
before  her  marriage  or  in  transactions  within  her  marital  com- 
petence. The  husband  was  liable  for  these  obligations  of  the 
collective  estate  with  his  special  estate,  also,  if  such  existed ; 
whereas  under  most  legal  systems  the  wife  was  liable  only  with 
the  collective  property  under  all  circumstances,  and  could 
free  herself  even  from  this  liability,  as  in  the  case  of  a  chattel 
community,  by  a  renunciation  made  in  legal  form  (above,  p.  640). 
(B)  Legal  relations  after  dlssolxttion  of  marriage.  —  Gen- 
erally speaking,  it  was  usual  to  distinguish  between  "unherited" 
and  "inherited"  marriages  ;  although  many  legal  systems,  notably 
those  of  the  Lower  Franks  and  Westphalians,  maintained  a  rule 
equally  applicable  in  all  cases.  Li  the  case  of  the  "  unheritcd  " 
marriage,  some  legal  systems  permitted  a  partition  of  the  property 
immediately  upon  or  after  the  thirtieth  day,  following  the  death 
of  either  spouse,  the  survivor  taking  from  the  collective  estate 
a  certain  part  as  his  (or  her)  sole  proj)erty  for  the  future.  In  the 
older  legal  systems  this  share  of  the  survivor  was  usually  a  major 
portion.  Especially  common  was  partition  into  thirds,  two  of 
these  falling  to  the  survivor ;  but  this  was  frequently  true  only 
of  the  widower's  sword-portion,  whereas  the  widow  was  obliged 
to  content  herself  with  the  distaff-portion  of  a  third.  On  the 
other  hand,  a  division  into  halves  was  usually  a  result  only  of  a 

644 


Chap.  XI]  MARRIAGE  [§  95 

later  legal  development.  Still  other  legal  systems  admitted  no 
partition  whatever,  but  provided  that  the  surviving  spouse  should 
receive  the  entire  collective  property.  This  was  a  rule  which 
corresponded  exactly  to  the  principle  of  collective  hand,  being  an 
accrescence  of  the  portion  of  one  commoner,  freed  by  death,  for 
the  benefit  of  the  survivor  ("  liingst  Leib,  langst  Gut  "  :  "  so  long 
property  as  life  in  the  body  ")  ;  but  later  it  was  ordinarily  regarded 
as  a  right  of  inheritance  of  the  surviving  spouse  in  the  share  of 
the  dead  consort. 

If  the  marriage  was  "  inherited ",  then  according  to  many 
legal  systems,  notably  the  Frankish,  all  the  property  fell  to  the 
surviving  spouse  in  sole  ownership ;  but  it  was  then  bound,  as 
in  the  case  of  the  limited  community  of  goods,  by  the  children's 
right  of  sequestration  which  attached  to  the  lands.  Another 
widespread  rule  was  that  the  children  should  take  the  place  of 
their  dead  parent,  and  continue  the  community  of  goods  with 
the  survivor  for  common  profit  and  loss  (infra,  §  98).  In  this 
connection,  in  turn,  very  different  provisions  prevailed  concerning 
the  time  and  the  basis  of  the  partition  thus  temporarily  post- 
poned but  later  to  be  realized.  For  the  most  part,  the  children 
could  demand  such  when  they  reached  majority,  or  when  the 
daughters  wished  to  marr}%  or  when  the  parent  proved  a  poor 
manager,  and  particularly  when  he  contracted  a  second  marriage. 
On  the  other  hand,  where  a  usufruct  for  life  in  the  children's 
share  existed  in  favor  of  the  surviving  parent  the  community 
continued  under  the  second  marriage  and  the  partition  could  be 
made  only  upon  his  death, 

(3)  Regulation  by  contract.  —  The  extraordinary  complexity  of 
the  law  of  the  marital  community  was  considerably  increased 
in  consequence  of  the  fact  above  adverted  to  (pp.  632  et  seq.)  that 
in  addition  to  the  systems  provided  by  statute  special  contractual 
rules  were  introduced  and  acquired  wide  prevalence,  partly  before 
the  establishment  of  the  former  and  partly  in  association  with 
them ;  and  also  because  in  many  regions  the  various  statutory 
systems  of  marital  community  were  ordinarily  supi)lemented  by 
contractual  rules  of  traditional  origin,  particularly  by  voluntary 
gifts  ("  Zuwendungen  ")  between  the  spouses.  Thus,  for  ex- 
ample, among  the  noble  classes  of  West  and  South  Germany  a 
so-called  "  dower  "  marriage  long  enjoyed  great  favor  along  with 
the  statutory  forms  of  marital  estates.  In  this  the  wife  received 
from  her  husband  a  gift  which  originated  in  a  union  of  the  old 
dower   ("  Wittum  ")   with  the  morgive.     For  the  rest,   it  was 

645 


§  95]  FAMILY    LAW  [BoOK   IV 

regulated  substantially  like  the  administrative  community. 
It  was  customary  in  many  regions  to  adjust  such  gift  to:  the 
value  of  the  marriage  portion  brought  with  her  by  the  wife ;  to 
the  end  that,  as  the  husband  retained  the  dowry  ("  Heimsteuer  ") 
of  the  wife  upon  her  death,  so  the  wife  upon  his  death  should 
receive  an  equal  benefit  in  the  form  of  this  "  Widerlage  "  ("  Gegen- 
geld  ",  —  counter-money  ;  "  contrados  ",  "  augmentum  dotis  "). 
§  96.  The  Law  of  Marital  Property :  (3)  The  Modem  Law.  — 
(I)  General  Development  Since  the  Reception.  —  If  the  result  of 
the  medieval  legal  development  was  an  extraordinary  diversity 
in  the  law  of  marital  property,  this  diversity  was  still  further 
increased  in  the  modern  period,  by  the  Reception  and  by  a  stat- 
utory activity  of  various  governments  which  frequently  took  the 
form  of  pure  arbitrariness,  disregarding  as  useless  even  a  knowl- 
edge of  the  existing  legal  systems.  Thus,  in  many  places  "  the 
continuity  of  legal  development  was  broken,  alien  systems  were 
introduced,  and  it  was  often  left  to  accident  which  principle  should 
be  established  in  modern  legislation."  ^  Although  individual 
systems  had  spread  in  the  Middle  Ages  without  regard  to  the  terri- 
torial bounds  of  different  racial  branches,  there  could  no  longer 
be  any  talk  of  larger  regions  in  which  a  definite  system  exclusively 
prevailed ;  at  the  most  it  might  be  said  that  a  preference  existed 
in  North  Germany  for  the  administrative  and  the  general  com- 
munity of  goods,  and  in  West  Germany  for  the  chattel  community. 
The  condition  of  the  law  was  most  of  a  medley  in  Middle  and 
South  Germany,  where  the  boundaries  of  various  systems  of 
marital  property  often  ran  through  one  village.  Not  rarely,  also, 
several  systems  of  marital  property  were  recognized  in  one  and 
the  same  district ;  and  what  is  more,  not  only  were  "  inherited  " 
and  "  unherited  ",  and  first  and  second  marriages,  treated  in 
the  traditional  manner  of  the  older  law,  but  marriages  between 
parties  of  difl'ercnt  status  by  birth  or  occupation,  and  of  different 
religious  faiths,  were  treated  according  to  different  principles. 
So,  for  example,  in  Wiirzburg  the  dotal  system  prewiiled  as  to 
marriages  of  imperial  knights,  but  otherwise  the  rules  of  the  gen- 
eral or  acquest  community ;  in  the  older  Hessian  portions  of 
Ilesse-Cassel  the  dotal  system  prevailed  for  the  higher  classes 
and  the  acquest  community  for  the  lower ;  in  Augsburg  the 
acquest  community  for  industrials,  and  the  dotal  system  in  other 
cases;  in  Hechingen,  the  community  of  goods  for  Christians  and 
separate  estates  for  Jews;  in  Mecklenburg,  Germanic  law  (for 
•  Slobbe,  IV  (3d  ed.),  149. 
646 


Chap.  XI]'  MARRIAGE  [§  96 

the  most  part  Liibeck  law  and  the  law  of  the  Old  March)  in  most 
of  the  cities,  but  in  some  of  them  a  Germanic  law  modified  by, 
and  in  still  others  a  pure,  Roman  law,  —  Roman  law,  also,  for 
all  privileged  persons,  and  with  few  exceptions  for  the  entire  open 
("  platte  ")  country. 

In  view  of  this  devotion  to  particularism,  even  some  of  the  great 
modern  codes  renounced  any  attempt  to  introduce  a  uniform  law 
of  marital  property  for  the  entire  territory  of  the  State.  The 
Prussian  Allgemeines  Landrecht  adopted  the  so-called  "  local  " 
("  Regional-  ")  principle.  That  is,  while  it  regulated  the  law  of 
marital  property,  primarily  and  in  principle,  according  to  an  inde- 
pendent system  which  represented  a  modification  of  the  Saxon 
administrative  community,  and  which  prevailed  in  the  absence  of 
other  agreement,  it  also  left  in  authority  along  with  this,  within 
their  respective  territories,  those  provincial  statutes  and  regula- 
tions ("  Statuten  ")  which  established  a  general  or  an  acquest- 
community,  - —  although  adopting  even  as  to  these  systems 
numerous  rules  designed  to  give  to  such  regional  systems  of 
marital  community  a  certain  uniformity  of  basis,  and  particularly 
for  guidance  in  doubtful  questions.  This  general  system  was  in- 
tended to  govern,  therefore,  only  in  so  far  as  no  other  rule  was 
provided  in  the  regional  systems.  Nevertheless  the  system  of  the 
general  community  of  goods  thus  established  by  State  law  attained 
cardinal  importance.  In  the  first  place,  it  prevailed  whenever  a 
community  of  goods  was  agreed  upon  by  contract  outside  the 
regions  where  such  community  existed  by  force  of  law;  it 
was  later  introduced  as  a  statutory  system  into  the  province  of 
Posen  and  in  some  districts  of  Pomerania ;  finally,  a  codification 
of  the  law  of  marital  estates  in  the  general  sense  of  a  general 
community  of  goods  closely  related  to  that  of  the  Landrecht  was 
effected  for  the  province  of  Westphalia  and  for  those  parts  of  the 
Rhine  Province  in  which  the  "  Landrecht "  prevailed  by  a  law  of 
April  16,  LS60.  The  Code  Civil  followed  another  course.  Re- 
jecting the  "  regional  "  principle,  it  recognized  several  systems  of 
marital  property :  preferentially,  the  chattel  community,  which 
it  recognized  as  the  statutory  system  whenever  a  marriage  con- 
tract contained  only  a  bare  declaration  that  the  marriage  was  con- 
tracted under  the  law  of  community  of  goods,  or  when  no  contract 
was  made.  Beside  this,  it  permitted  other  contractual  agreements, 
and  laid  down,  as  a  basis  for  these,  provisions  concerning  the 
acquest-community,  the  general  community  of  goods,  the  system 
of  separate  estates,  and  the  dotal  system. 

647 


§  96]  FAMILY   LAW  [Book   IV 

(II)  Specific  Systems  of  Marital  Property.  —  In  addition  to 
the  systems  of  the  achiiinistrative,  general,  and  hmited  com- 
mmiity  of  goods  to  which  the  medieval  devek^pment  had  led,  the 
Roman  dotal  system  was  adopted,  as  already  mentioned,  as  an 
additional  system  of  marital  property  in  consequence  of  the  Recep- 
tion. Indeed  the  authority  of  common  law  was  ascribed  to  this 
by  the  jurists.  However,  the  native  statutes  and  practices  offered 
such  resistance  as  to  exclude  the  Roman  law  from  entry  into 
practical  legal  life  save  to  a  very  slight  extent.  But  though  the 
Roman  law  actually  displaced  the  native  only  in  a  few  regions, 
it  nevertheless  attained  a  very  considerable  influence ;  so  much  so 
that  the  Roman  concepts  were  thenceforth  preferably  treated  as 
norms  in  applying  the  rules  of  the  Germanic  law,  and  in  legisla- 
tion. And  in  the  scientific  statements  that  were  now  first  at- 
tempted of  these  various  systems  they  necessarily  furnished  the 
guiding  principles. 

While  a  certain  force,  albeit  weak,  tending  toward  uniformity 
was  involved  in  the  scientific  method  thus  generally  observed, 
a  stronger  check  upon  particularistic  legal  development  was 
found  in  the  fact  that  certain  general  principles  everywhere 
remained  controlling  even  in  modern  times,  —  alike  in  the  na- 
tive Germanic  systems,  notwithstanding  their  divergent  devel- 
opment in  details,  and  in  the  dotal  system  of  the  common  law. 
In  consequence  of  this  the  inconsistencies  in  the  two  systems  had 
a  more  superficial  effect  than  must  otherwise  have  been  the  case. 

These  common  princi})les  included,  in  the  first  place,  the  old 
rule  that  the  husband,  as  the  principal  in  the  marriage  relation, 
should  bear  the  burdens  of  the  marriage,  and  was  therefore  en- 
titled, so  far  as  a  special  estate  was  not  expressly  created  for 
the  wife,  to  take  possession  of  and  to  administer  the  wife's  entire 
property.  Under  all  the  Germanic  systems  the  wife  continued, 
therefore,  to  be  restricted  in  her  dispositive  powers ;  without  the 
consent  of  her  husband  she  might  neither  alienate  her  property 
nor  charge  it  with  liabilities.  In  accordance  with  the  older 
Germanic  law,  it  was  only  within  the  scope  of  her  "  key-power  ", 
and  further  in  case  of  the  husband's  incapacity  or  in  case  of  an 
independent  business  carried  on  by  the  wife  with  her  husband's 
assent,  that  an  unrestricted  capacity  of  action  was  attributed  to 
her.  The  regions  of  the  common  law  of  dower  right  ("  Dotal- 
recht  ")  were  the  only  ones  where  these  principles  had  no 
authority ;  since  there,  in  accordance  with  the  Roman  rules,  a 
wife  had  the  same  capacity  for  action  as  an  unmarried  woman. 

648 


Chap.  XI]  MARRIAGE  [§  96 

Moreover,  unlike  the  Roman  law,  which  gave  the  spouses  only 
a  limited  power  of  contractual  disposition  over  their  rights  in 
the  marital  property,  the  principle  of  free  contract  was  quite 
generally  preserved.  Only  the  modern  regional  systems  required 
the  observance  of  certain  forms  (writing,  judicial  or  notarial 
authentication)  and  also,  frequently,  publication.  The  present 
Civil  Code  has  followed  the  example  of  Bremen  and  Oldenburg 
in  introducing,  to  satisfy  the  last  two  requirements,  an  entry  in 
the  register  of  marital  property ;  the  commercial  register  having 
theretofore  been  used,  to  some  extent,  in  place  of  this.  With 
the  exception  of  the  Code  Civil  most  of  the  modern  systems 
permitted  the  conclusion  of  marriage  contracts  not  only  before 
but  also  during  the  existence  of  the  marriage. 

For  the  rest,  the  individual  systems  at  the  end  of  their  develop- 
ment,—  i.e.  at  the  end  of  the  1800  s,  —  were  related  to  each 
other,  as  regards  their  territorial  prevalence  and  general  princi- 
ples, approximately  as  follows : 

(1)  The  administrative  community.  (A)  Jurisdiction.  —  In  the 
form  defined  by  the  Prussian  "  Landrecht ",  this  prevailed  as  a  stat- 
utory system  in  almost  all  of  Silesia,  in  certain  circles  of  the  prov- 
inces of  Pomerania  and  Brandenburg,  in  the  province  of  Saxony, 
and  in  East  Friesland.  It  also  prevailed  in  the  greater  part  of  the 
province  of  Brandenburg,  including  the  city  of  Berlin,  by  virtue 
of  the  Constitutio  Joachim ica  of  1527  ;  in  the  Kingdom  of  Saxony, 
b}'  virtue  of  the  Saxon  Code ;  and  further,  in  the  Saxon-Thurin- 
gian  principalities  and  in  Anhalt,  in  parts  of  Schleswig-Holstein 
and  Hannover,  in  Oldenburg,  in  Liibeck,  and  in  most  of  the  cities 
of  Mecklenburg  law  (for  example  Rostock,  Wismar,  Schwerin, 
etc.).  At  the  end  of  the  1800  s  some  twenty-one  million  persons 
lived  under  this  s}'stem. 

(B)  Legal  relations  during  m.uiriage. — On  the  whole,  the 
old  legal  rules  prevailed  in  this  type  of  marital  estate,  save  that 
the  powers  of  the  husband,  which  were  once  the  result  of  his 
seisin  "  in  mundium  ",  were  now  construed  as  a  marital  usufruct 
("  usufructus  maritalis  "),  notwithstanding  that  there  was  here 
no  usufruct  in  the  sense  of  the  Roman  law,  —  his  power  to  alien- 
ate specific  portions  of  the  wife's  property,  in  particular,  being 
irreconcilable  with  the  Roman  usufruct.  To  the  estate  of  the 
wife  belonged  property  brought  with  her  in  marriage  or  acquired 
for  value  during  its  continuance;  it  became  immediately  sub- 
ject to  the  administration  and  usufruct  of  the  husband,  and  in 
the  case  of  money  and  fungible  things  passed  to  his  ownership, 

649 


§  96]  FAMILY  LAW  [Book  IV 

The  profits  of  her  property  and  also,  in  particular,  whatever  she 
acquired  by  her  labor  became  the  property  of  her  husband.  How- 
ever, she  could  be  given  a  reserved-estate  by  contract,  and  in 
this  the  husband  had  no  rights.  As  for  her  lands,  the  husband 
could  not  dispose  of  these  without  her  consent,  since  an  entry  in 
the  Land  Book  was  necessary.  The  husband  was  liable  to  his 
wife  for  an  efficient  administration  of  the  property.  To  insure 
this  the  statutory  pledge  right  which  the  Roman  law  gave  her  to 
secure  her  "  dos  "  was  extended  to  cover  all  the  property  brought 
with  her  in  marriage ;  there  was  later  developed  from  this  a 
statutory  hypothecary  title.  Under  most  legal  systems  only  the 
property  of  the  husband,  —  together  with  the  profits  of  the  wife's 
property  brought  with  her  in  the  marriage,  —  was  liable  for  his 
obligations ;  on  the  other  hand,  the  husband's  property  was  also 
liable  for  the  obligations  of  his  wife  in  case  he  had  given  his 
consent  to  the  contract  she  concluded. 

(C)  In  case  of  dissolution  of  marriage  by  death  there  ordi- 
narily resulted  immediately  a  division  of  the  marital  property, 
the  surviving  spouse  receiving  in  addition  to  his  or  her  own  prop- 
erty a  part  of  that  of  the  deceased,  by  virtue  of  a  right  of  inherit- 
ance recognized  in  his  or  her  favor.  This  was  the  "  statutory  por- 
tion." Often,  however  (under  some  legal  systems  only  in  case  of 
"  unherited  "  marriages),  no  partition  was  made,  the  property  being 
left  intact  and  either  given  to  the  surviving  spouse  as  a  whole  or 
assigned  in  shares  to  such  spouse  and  the  heirs  of  the  dead.  This 
was  called  a  "  community  of  goods  mortis  causa."  In  the  case  of 
"  inherited  "  marriages  a  choice  was  often  given  to  a  surviving 
spouse,  either  to  the  widow  only  or  also  to  the  widower,  whether 
he  or  she  would  divide  all  the  marital  property  theretofore  physi- 
cally united  ("  Grund-  "  or  "  Totteilung  "  :  landed-partition, 
partition  mortis  causa),  or  first  take  out  his  own  property  and  then 
divide  the  remainder  with  the  children  or  other  heirs  of  the  de- 
ceased. In  regions  of  the  Saxon  law  the  rules  of  chattel  succes- 
sion established  in  the  Sachsenspiegel  and  the  Constitution  of 
Electoral  Hesse  prevailed  as  to  widowers,  whereas  a  widow  had  a 
choice  between  the  re-delivery  of  her  marriage  portion  and  her 
right  to  the  statutory  jiortion.  In  place  of  this  principle  a  va- 
riant rule,  more  closely  resembling  that  of  the  Prussian  "Land- 
recht",  was  introduced  for  the  Kingdom  of  Saxony  by  a  statute  of 
December  29,  1829,  This  statute  abandoned  the  community 
mortis  causa  (which,  however,  remained  in  authority  in  Berlin 
and  ]Mark  Brandenburg,  by  virtue  of  the  Joachimica,  in  cases 

650 


Chap.  XI]  MARRIAGE  [§  96 

where  the  survivor  did  not  withdraw  his  property  from  the  col- 
lective mass),  and  gave  to  the  surviving  spouse  in  addition 
to  his  own  property',  which  reverted  to  him,  a  statutory  por- 
tion that  was  variously  measured  according  to  the  nearness  in 
kinship  of  the  other  heirs  of  the  deceased.  That  is  :  if  there  were 
descendants  one-fourth,  or  if  more  than  three  lines  of  descendants 
were  represented  a  child's  portions ;  if  there  were  ascendants,  or 
brothers  or  sisters,  or  nephews  or  nieces,  a  third ;  otherwise  the 
survivor  inherited  the  half  or  the  entire  heritage.  In  default  of 
descendants  the  surviving  spouse  also  inherited  the  ordinary 
bed  and  table  linen,  as  well  as  furniture  and  household  utensils 
(a  reminiscence  of  the  old  paraphernalia).  Further,  the  vol- 
untary' gifts  of  the  old  law,  the  morgive,  maintenance  portion 
("  Leibzucht  ",  and  "  Widerlage  "),  dower  ("  Wittum  "),  para- 
phernalia, and  compulsory  portion  ("  Musteil  ")  were  preserved 
in  many  regions,  especially  among  the  noble  classes,  and  in  their 
case  partly  as  statutory  claims. 

(2)  The  general  co77im unity  of  goods.  (A)  Jurisdiction. — This 
system  of  marital  estate  was  very  widely  prevalent  in  Germany, 
more  especially  in  the  North.  In  Prussia  it  prevailed  in  East 
Prussia  (save  as  to  nobles),  in  West  Prussia,  and  in  Posen,  in  the 
lowlands  of  Pomerania,  in  Westphalia,  and  in  those  portions  of 
the  Rhine  province  that  were  subject  to  the  "Landrecht,"  —  in 
all  of  which  it  was  uniformly  regulated  by  the  statute  of  18G0  just 
mentioned;  in  the  Hohenzollern  principalities,  in  parts  of 
Schleswig-Holstein,  Hannover,  and  Hesse-Nassau.  Further,  in 
many  districts  of  Bavaria,  in  some  portions  of  Hesse-Darmstadt, 
in  some  cities  of  ^Mecklenburg,  in  Thuringian  districts,  in  I^ippe- 
Detmold,  in  Bremen,  and  in  Hamburg.  A  population  of  some 
eleven  million  lived  under  the  law  of  the  general  marital  com- 
munity in  1900. 

(B)  Principles  applicable  during  the  continuance  of 
MARRIAGE.  —  In  general  the  old  rules  remained  in  authority. 
Difficulties  arose  from  the  juristic  theory  above  referred  to,  for 
here  was  a  relation  that  could  not  be  forced  within  the  Roman 
categories  of  sole  ownership  and  co-ownership  by  ideal  shares, 
however  much  many  jurists  strove  to  construct  such  a  Roman- 
istic  co-ownership,  endeavoring  for  this  purpose  to  discover  in  the 
marital  community  a  "  societas  "  or  a  "  communio."  However, 
the  hopelessness  of  this  attempt,  in  particular  the  impossibility 
of  basing  the  participation  of  the  spouses  upon  the  principle  of 
quotal  rights  ("  Quoten  "),  made  it  necessary  to  undertake  the 

651 


§  96]  FAMILY    LAW  [BoOK   IV 

solution  of  a  question  from  the  Germanic  viewpoint.  Of  the 
jurists  who  followed  this  course,  some  it  is  true,  advanced  a 
theory  certainly  indefensible,  alleging  that  the  spouses  constituted 
by  their  union  a  new  and  independent  subject  of  rights,  —  either 
a  juristic  person  or  an  unclcarly  conceived  association,  — to  which 
the  marital  property  belonged.  This  theory  of  a  juristic  person 
was  championed  especially  by  Hasse,^  who  contended  that  the 
spouses  lost  their  previously  existing  rights,  in  toto,  to  this 
**  mystic  person  "  of  which  they  were  members,  without  retaining 
therein  the  slightest  share  as  individual  subjects  of  rights.  This 
view,  however,  although  it  for  a  time  dominated  legal  literature 
(Eichhorn  and  Albrecht  accepted  it)  was  entirely  too  artificial  to 
be  capable  of  maintenance.  The  consequences,  also,  to  which  it 
led  were  in  part  in  open  conflict  with  the  actually  existing  law. 
The  outcome  was  that  a  theory  eventually  triumphed  which,  — 
adopting  ideas  (supra,  p.  239)  first  expressed  by  Justus  Veracius, 
but  modifying  the  Germanic  "  condominium  plurium  in  so- 
lidum  "  that  was  assumed  by  him  and  his  followers,  —  regarded 
the  marital  community  of  goods  as  an  application  of  Germanic 
ownership  in  collective  hand,  in  the  sense  which  has  been  explained 
(supra,  pp.  235  et  seq.). 

(C)  Relations  after  dissolution  of  marriage.  —  The  pro- 
visions in  modern  legal  systems  concerning  the  consequences  of  a 
dissolution  of  marriage  varied  greatly  in  details,  but  on  the  whole 
they  always  adopted  one  of  the  three  rules  already  recognized  in 
the  IMiddle  Ages.  Either,  —  as  was  especially  common  in  cases 
of  "  unherited  "  marriages,  —  the  collective  property  was  divided 
between  the  surviving  spouse  and  the  next  heirs  of  the  deceased 
in  a  certain  ratio  (usually  by  halves,  but  also,  still,  according  to 
sword  and  distaff  shares  and  the  like) ;  or,  —  as  was  especially 
frequent  in  cases  of  "  inherited  "  marriages,  — a  continued  mari- 
tal community  was  established  between  the  survivor  and  the 
children ;  or  the  entire  marital  property  passed  to  the  survivor. 
When  a  partition  was  made,  many  legal  systems,  in  accord  with 
traditional  principles,  granted  the  survivor,  besides  his  share  of 
the  collective  estate,  a  so-called  "  Beisitz  "  ("  by-sitting  "),  — 
which  was  a  usufructuary  right  for  life  or  for  some  other  period 
in  the  portions  of  the  children  or  other  heirs  of  the  deceased  con- 
sort. In  many  other  legal  systems,  however,  the  surviving 
parent  enjoyed  more  than  this  "  Beisitz  ",  which  involved  ad- 

'  "Beytrap:  zur  Revision  der  bisherigcn  Lehro  von  dor  Giitergemein- 
Bchaft"  (1808). 

652 


Chap.  XI]  MARRIAGE  [§  96 

ministration  and  usufruct  of  the  portions  of  the  children.  In- 
stead of  giving  the  children  their  separate  shares,  there  was  estab- 
lished, namely,  by  force  of  law,  between  him  and  them  a  "  con- 
tinued "  community  of  goods  ("  fortgesetzte  ").  In  this,  as  in  the 
marital  community  of  goods  during  marriage  there  existed  a 
community  of  collective  hand  in  the  unapportioned  shares  of 
the  estate,  and  a  common  management  for  common  profit  and 
loss ;  and  in  this  relation  of  collective  hand  the  children  and  their 
issue  took  per  stirpes  the  place  of  the  dead  spouse.  To  the  col- 
lective estate  there  belonged  the  whole  property  as  it  existed  at 
the  dissolution  of  the  marriage  and  the  later  acquests  of  the  sur- 
viving parent ;  on  the  other  hand,  later  acquests  of  the  children 
were  not  included,  but  constituted  their  own  separate  estate. 
The  administration  of  the  collective  estate  fell  to  the  surviving 
parent  under  the  same  rules  as  to  the  husband  in  the  marital  com- 
munity; consultation  of  the  children  was  necessary  to  the  same 
extent  as  was,  in  that,  the  consent  of  the  wife.  Under  all  circum- 
stances, remarriage  by  the  surviving  spouse  worked  a  dissolution 
of  the  continued  community.  Under  many  legal  systems  the 
surviving  spouse's  exclusive  right  of  inheritance  was  recognized 
in  the  case  not  only  of  "  unherited  "  but  also  of  "  inherited  " 
marriages ;  nevertheless,  in  the  latter  case  the  ownership  thus 
acquired  was  not  limited,  as  in  the  continued  community,  by 
rights  of  collective  hand,  but  by  the  children's  rights  in  expectancy. 

(3)  The  limited  community  of  goods.  (A)  The  acquest-com- 
munity prevailed  in  1900  among  a  population  of  about  ten  mil- 
lions ;  particularly  in  the  regions  of  the  Franconian  law,  in  parts  of 
Hesse-Darmstadt  and  Electoral  Hesse,  in  Nassau,  Wetzlar,  and 
Frankfort  (by  virtue  of  the  Franconian  Ordinance  of  Territorial 
Courts  of  1618,  the  Territorial  law  of  Solm  of  1571,  the  Territorial 
law  of  Mainz  of  1755,  and  the  Frankfort  Reformation  of  IGll); 
further,  in  parts  of  the  Rhine  province  of  Prussia  (district  of  the 
"  Judicial  Senate  "  of  Ehrenbreitstein),  in  Schleswig-Holstein 
(in  Ditmarsch,  Fehmarn,  Nordstrand),  in  Hannover,  Thuringia, 
in  great  areas  of  Old  Bavaria  (by  virtue  of  the  Bavarian  Terri- 
torial Law),  and  finally  in  Wiirttemberg  (by  virtue  of  the  Wiirt- 
temberg  Territorial  Law  of  1610). 

(B)  The  chattel  community  prevailed,  as  the  statutory  sys- 
tem of  the  Code  Civil  (which  in  its  codification  followed  especially 
the  Custom  of  Paris)  in  the  lands  of  the  French  law ;  that  is,  in 
the  Rhine  province  of  Prussia  to  the  West  of  the  Rhine  as  well  as 
in  the  greatest  part  to  the  East ;   also  in  Rhenish  Hesse,  in  the 

653 


§  96]  FAMILY    LAW  [BoOK   IV 

Oldenburg  principality  of  Birkenfeld,  in  the  Bavarian  Palatinate, 
and  in  Alsace-Lorraine.  Also  in  Baden,  hy  virtue  of  the  Baden 
Territorial  Law,  and  finally  in  Schleswig-Holstein  by  virtue  of  the 
Jutland  Law.     Some  nine  million  people  lived  under  this  system. 

x\s  respects  the  system  of  the  limited  comuiuiiiiy  of  goods,  ref- 
erence may  be  made  to  the  remarks  already  made  upon  the  me- 
dieval law  (supra,  pp.  G39  ef  seq.),  since  the  legal  i)rincii)les  govern- 
ing it  were  preserved  intact,  notwithstanding  the  great  diversity 
that  of  course  existed  in  details  ;  and  since,  moreover,  the  rules  of 
the  general  community  of  goods  and  those  of  the  administrative 
community  continued  to  be  applied,  respectively,  to  the  collective 
estate  and  to  the  special  estates  ("  Einhandsgiiter  ")  of  the  spouses. 
Special  rules  prevailed  in  the  French  law  respecting  liability  for 
obligations. 

(4)  Finally,  the  dotal  system  of  the  common  law  became  estab- 
lished in  Electoral  Hesse,  in  scattered  portions  of  Westphalia, 
Pomerania,  and  Hannover ;  in  Lauenburg,  in  many  districts  of 
Bavaria  and  Hesse-Darmstadt,  in  the  rural  regions  of  Mecklen- 
burg, in  Brunswick,  etc.  It  was  the  rule  for  about  three  million 
persons.  The  Austrian  Civil  Code  also  based  its  law  of  marital 
property,  substantially,  upon  the  principles  of  the  Roman  dotal 
system. 

The  Roman  law,  in  its  pure  form,  was  very  sharply  contrasted 
even  with  that  Germanic  system  which  most  resembled  it,  namely, 
the  administrative  community.  For  it  rested  upon  the  principles 
that  marriage  involved  no  change  whatever  in  the  position  of 
the  married  person  under  the  property  law ;  that  the  property 
of  the  married  couple  remained  separate,  equally  as  regarded 
ownership,  administration,  and  disposition ;  that  the  hus})and 
had  no  other  rights  in  the  property  of  the  wife  (her  so-called 
"  parapherna  ")  than  she  might  see  fit  to  grant  him,  —  for 
which  reason,  also,  her  acquests  increased  her  "  parapherna  " 
only ;  and  that  marital  obligations  bound  the  husband  exclu- 
sively, the  wife  sharing  the  liability  only  in  case  a  "dos"  was 
given  for  her.  This  "  dos  "  passed  into  the  husband's  owner- 
ship, but  was  required  to  be  restored  to  her  after  dissolution  of 
the  marriage.  Further,  whereas  under  Germanic  law  the  hus- 
band might  alienate  the  wife's  land  with  her  consent,  the  "  fundus 
dotalis  "  was  absolutely  inalienable  according  to  Roman  law. 
IMoreover,  the  Roman  law  recognized  a  herital  right  of  a  surviving 
spouse  only  in  default  of  kindred  of  the  dead  consort,  and  in 
addition  the  herital  right  of  a  poor  widow. 

G54 


Chap.  XI]  marriage  [§  96 

This  Roman  law  of  dotal  property,  however,  was  adopted  in 
its  pure  form  only  in  the  rarest  cases.  In  the  regions  of  the 
common  law,  as  well  as  in  the  statutes  that  recognized  that,  it 
suffered  many  modifications  in  the  sense  of  the  Germanic  law, 
for  which  reason  the  system  was  ordinarily  known  as  "  the  modi- 
fied dower  system."  In  particular,  here  again  the  entire  adminis- 
tration and  usufruct  of  the  wife's  estate,  notwithstanding  this 
was  kept  separate  from  his  own  property,  was  ordinarily  given  to 
the  husband  in  recognition  of  his  traditional  mundium,  —  the 
distinction  between  the  dotal  property  and  the  parapherna  thus 
losing,  of  course,  its  practical  importance,  for  with  this  change 
the  dower  system  came  closer  to  the  administrative  community. 
In  the  same  way  alienations  of  the  "  fundus  dotalis  "  were  per- 
mitted with  the  consent  of  the  wife  and  approval  of  the  court. 
At  times,  also,  there  was  recognized  an  acquest  irreconcilable  with 
the  Roman  law.  And  finally,  the  Roman  rules  of  succession 
*'  bonorum  possessio  unde  vir  et  uxor  "  and  the  herital  right  of 
poor  widows  were  replaced  by  the  statutory  herital-portion  of 
Germanic  law. 

(Ill)  Establishment  of  Legal  Uniformity.  —  The  Civil  Code 
made  an  end  of  this  condition  of  the  German  law  of  marital  prop- 
erty, —  a  condition  which  was  intolerable,  and  impossible  of 
continuance  in  a  unified  country.  True,  historical  antecedents 
and  prevailing  conditions  did  not  permit  the  introduction  of  such 
a  single  exclusive  system  as  was  realized  in  the  Austrian  and  the 
Saxon  Codes.  Even  the  principle  of  contractual  freedorn,  which 
the  Code  recognized  in  agreement  with  the  earlier  law,  would  not 
have  sufficed  to  reconcile  the  variety  of  legal  customs  prevailing 
in  different  parts  of  Germany.  Hence  the  Civil  Code,  rejecting 
the  principle  of  local  option  ("  Regionalprinzip  "),  has  adopted 
the  course  followefl  by  the  Code  Civil  in  providing  several  systems 
of  marital  property.  Two  of  these  systems,  —  the  administrative 
and  usufructuary  system  (i.e.  the  administrative  community) 
and  that  of  separate  estates,  —  it  has  laid  down  as  "  legal  " 
systems.  The  former  is  assumed  as  the  normal  system  when 
nothing  else  is  agreed  upon  at  the  time  of  marriage ;  the  latter, 
on  the  other  hand,  when  a  woman  of  limited  capacity  for  juristic 
acts  marries  without  the  consent  of  her  statutory  representative, 
or  when  any  other  system  of  marital  property  in  which  spouses 
have  theretofore  been  living  is  ended  during  the  continuance  of 
marriage,  or  when  spouses  whose  marital  community  has  been 
abolished   reestablish   such   community.     It   also    regulates   the 

655 


§  96]  FAMILY   LAW  [BoOK   IV 

general,  the  acquest,  and  the  chattel  communities  when  estab- 
lished contractually  as  the  marital  property  system;  so  that  the 
spouses  can  make  these  systems  the  basis  of  their  contract  by  a 
simple  reference  to  the  respective  sections  of  the  Code.  They 
can  also  adopt  voluntarih'  the  statutory  system  of  distinct  estates 
or  any  other  whatever  as  they  may  please,  provided  they  be  not 
immoral  or  opposed  to  the  purposes  of  marriage.  Nor  may  they 
refer  in  their  contract  to  a  statute  wliich  is  no  longer  in  force,  nor 
to  a  foreign  statute.  Although  the  present  Civil  Code  has  con- 
formed in  general  to  the  principles  of  the  legal  systems  that  pre- 
vailed before  1900,  its  provisions  nevertheless  include  many 
modifications  in  the  case  of  all  four  systems.  Here  again  the 
primary  consideration  of  the  legislator  has  been  to  give  greater 
security  to  the  wife's  legal  position  ;  one  of  the  most  significant 
novelties  being  that  under  the  statutory  rules  for  the  administra- 
tion and  usufruct  of  the  wife's  reserved-estate,  —  as  to  which  no 
powers  of  administration  or  usufruct  exist  in  favor  of  the  hus- 
band, —  all  those  things  belong  thereto  which  the  wife  acquires 
by  her  labor  or  by  independent  prosecution  of  an  industry  (§  1367). 
Whether  the  best  means  have  everywhere  been  adopted  for  the 
attainment  of  that  end  and  whether  it  has  already  been  attained 
so  far  as  might  reasonably  be  desired,  is  a  question  that  cannot 
here  be  discussed  ;  and  a  detailed  consideration  of  the  law  as  at 
present  existing  must  also  be  dispensed  with. 

The  Swiss  Civil  Code  has  solved  in  the  same  manner  as  the 
German  the  legislative  task  of  establishing  uniformity  in  the  law 
of  marital  property,  —  the  forms  of  which,  in  Switzerland  also, 
were  formerly  very  diverse.  Like  the  German  Code  it  makes  the 
normal  statutory  system  that  of  a  joint  estate  ("  Guterverbin- 
dung  "),  though  this  is  differently  regulated  in  details;  and  be- 
sides this,  as  an  extraordinary  form,  it  recognizes  that  of  distinct 
estates ;  placing  at  the  disposition  of  the  parties,  moreover,  the 
systems  of  general,  limited,  and  continued  marital  community  of 
goods,  all  of  which  it  regulates,  and  any  of  which  the  parties  may 
adopt  by  contract.  It  has  also  introduced  the  register  of  marital 
property. 


656 


Chap.  XII] 


CHILDHOOD 


[§97 


Chapter  XII 


CHILDHOOD 


97.    Legitimate  Children  :  (1)  Per- 
sonal   Legal    Relations  be- 
tween   Parents    and    Chil- 
dren. 
I.    Paternal  Authority. 

(1)  Nature  and  extent  of 

paternal     author- 
ity. 

(2)  Origin    of    paternal 

authority. 

(A)  Legitimate 

bu-th. 

(B)  Adoption  of 

children. 

(3)  Determination       of 

paternal  power. 
II.    Legal    Relation    of    the 
Mother   to   her   Chil- 
dren.  Parental  Power. 


§  98.    Legitimate  Children  :   (2)  Re- 
lations under  the  Property 
Law. 
I.    During   Continuance   of 

Paternal   or   Parental 

Power. 

(1)  The  older  law. 

(2)  The  modern  law. 
II.   After     Termination     of 

Paternal   or   Parental 
Authority. 
§  99.    Illegitimate  Children. 

I.    The      Older     Germanic 
Law. 
II.    The    Modern    Develop- 
ment. 
III.    Legitimation. 


§97.  Legitimate  Children:^  (1)  Personal  Legal  Relations  be- 
tween Parents  and  Children.  (I)  Paternal  Authority.  —  (1)  Na- 
ture and  extent  of  paternal  authority.  —  In  accord  with  the  patriarchal 
organization  of  the  family  in  Indo-Germanic  and  Germanic  races, 
the  house-lord,  by  virtue  of  his  mundium,  was  the  absolute  master 
of  his  wife  and  children.  Clear  traces  have  been  preserved  down 
into  the  Middle  Ages  of  the  fact  that  this  paternal  authority, 
precisely  like  that  of  the  husband,  was  legally  unlimited,  and 
therefore  included  extraordinarily  extensive  powers,  notably  an 
absolute  power  of  discipline  and  punishment.  The  father  could 
dispose  absolutely  at  will  of  the  life  and  death  of  his  children. 
He  had  the  right  to  expose  them  after  birth,  to  repudiate,  to  en- 
slave, to  sell,  to  kill  them.  Here  also,  in  agreement  with  the 
general  development  of  the  concept  of  mundium  {supra,  pp.  584 
et  seq.),  the  ameliorations  that  at  first  were  demanded  only  by 
social  standards  ("  Sitte  ")  gradually  became  legal  restrictions. 
In  the  age  of  the  folk-laws  this  state  of  affairs  was  realized  :  the 
father  enjoyed  such  powers  only  in  case  of  the  existence  of  certain 
circumstances  defined  by  law,  and  he  was  frequently  required, 

1  CJ.  Fehr,  "Die  Rechtsstellung  der  Frau  und  der  Kinder  in  den  Weis- 
tiimern"  (1912),  87  et  seq. 

657 


§  97]  FAMILY    LAW  [BoOK    IV 

even  in  undertaking  merely  severe  chastisement,  to  have  the 
cooperation  of  tlie  family  or  the  sib.  That  this  power  over  free- 
dom and  life  might  be  exercised,  however,  in  the  cases  so  recog- 
nized, the  law  expressly  contemplated.  For  example,  as  respects 
the  power  of  sale  it  was  expressly  provided  as  late  as  in  the  "  Edic- 
tum  Pistense  "  of  the  Emperor  Charles  II,  of  8G4,  that  a  father  might 
sell  his  children  into  slavery  in  case  of  his  own  actual  necessity. 
A  similar  rule  was  adopted  so  late  as  in  the  Schwabenspiegel ; 
thougli  whether  it  actually  reflected  the  legal  conditions  of  that 
time  appears  doubtful,^  for  with  increasing  culture  and  under 
the  influence  of  Christianity  these  hard  and  cruel  expressions  of 
paternal  power  naturally  came  to  conflict  with  the  popular  con- 
sciousness of  right.  On  the  contrary,  the  duties  of  the  father 
became  more  prominent,  —  to  protect  his  child  and  to  represent 
it  in  court.  The  absolute  power  which  he  originally  could  exer- 
cise to  compel  the  marriage  of  his  daughters  became  weakened 
into  mere  rights  of  betrothal  and  assent  to  marriage  {supra,  599).^ 
Notwithstanding  this  change,  however,  of  the  three  forms  in  which 
the  mimdium  appeared  in  the  family  law  (marriage-stewardship, 
paternal  power,  guardianship),  it  was  "the  paternal  power  which 
preserved  most  markedly  throughout  the  Middle  Ages  the  original 
characteristics  of  house-lordship."  ^  The  view  continued  to  pre- 
vail that  the  father's  mundium,  in  contradistinction  to  that  of 
the  guardian,  was  intended  to  serve  the  individual  interest  of  the 
holder.  The  father  disposed  of  the  child  "  not  merely  in  order 
to  train  it,  to  determine  the  course  of  its  life,  to  marry  it,  but  also 
in  order  to  utilize  its  labor  in  his  own  service."  *  Consequently, 
this  emphasis  of  the  father's  interest  appeared  especially  in  rela- 
tions of  the  property  law  (infra,  §  98). 

After  the  Reception,  the  father's  duty  to  care  for  his  children 
was  treated  in  the  law  of  persons  as  decidedly  the  chief  element  in 
his  household  power.  It  was  required  that  he  should  exercise  for 
the  best  interest  of  the  child  the  right  of  training  him,  of  deter- 
mining his  religious  faith,  of  appointing  his  guardians.     P^or  this 

•  Swsp.,  357  (L);  cf.  Schroder,  "  Lclirl)uch"  (ath  ed.),  705,  who 
denies  convinoins  force  to  the  correspondiiijj:  passafjfo  in  tlie  sermons  of 
Geilrr  von  Kaiser sher(/,  because  they  were  derived  from  this  uncritical  note 
of  the  Schwahonspiepfel. 

^  Kii.stlir,  "Die  viitorlifho  Fihohowillipunp:,  ciiK'  kin-honroohtlicho 
Untersufhunpauf  refill  svcr^lciclicndcrCJruiidlairc".  No.  51  (  ]'.H)S)(>\'  Slutz's 
"Untfrsuchunf^cn",  and  "  Munti^cwalt  und  Ehehowilli^un^  in  iiircm  Ver- 
hilltnis  zueinandcr  iKu-h  lanf^ohardischem  und  frankischem  Reeht",  in 
Z\  \i.  Or.,  XXIX  (19()S),  79-135. 

'  Heusler,  "  Institutioncn",  II.  442. 

*  V.  Amir  a,  "Uecht"  (2d  cd.),  114. 

658 


Chap.  XII]  CHILDHOOD  [§  97 

reason  the  principles  of  the  law  of  guardianship  were  more  and 
more  appHed  in  the  modern  codes  to  the  legal  relations  exist- 
ing between  father  and  children,  the  father,  like  the  guardian, 
being  subjected,  although  less  strictly,  to  a  governmental  super- 
vision in  the  nature  of  guardianship  —  in  certain  cases  the  super- 
visory Guardians'  Court  ("  Obervormundschaftsgericht  ")  was 
empowered  or  required  to  interfere.  The  Civil  Code  has  like- 
wise conformed  in  this  matter  to  the  earlier  law,  providing  for 
official  interference  by  the  Guardians'  Court  in  certain  cases. 
This  is  required,  for  example,  when  the  father  has  grossly  violated 
his  duties,  or  when  he  desires  to  conclude  in  the  name  of  the  child 
certain  particularly  important  juristic  acts.  The  Swiss  Civil  Code 
has  applied  these  ideas  still  more  logically.  True,  it  sharply  dis- 
tinguishes, on  the  one  hand,  the  parental  power  from  the  guardian's 
power ;  but  on  the  other  hand  it  protects  the  children  by  pre- 
scribing more  explicitly  and  in  greater  detail  than  in  other  codes 
the  parents'  duties,  by  requiring  (like  the  German  Code)  in  cer- 
tain cases  a  guardian's  assent  to  parental  acts,  and,  finally,  by 
conceding  to  the  public  authorities  extensive  rights  of  interference, 
—  for  example,  the  removal  of  the  child  from  an  environment  that 
seriously  threatens  danger  from  tubercular  infection.^ 

(2)  The  origin  of  paternal  authority.  —  (A)  Legitimate  birth.  — 
According  to  the  oldest  law  the  father's  power  was  not  based 
upon  the  fact  that  he  had  begotten  the  child  but  upon  his  mun- 
dium  over  the  mother.  The  father  acquired  paternal  power  over 
those  children  only  who  were  born  to  him  by  a  wife  who  was  sub- 
ject to  his  mundium  as  husband  ;  that  is,  by  his  legal  wife.  If  the 
wife  was  under  the  mundium,  not  of  her  husband  but  of  another 
person  {e.g.  of  her  father),  her  children  became  subject  to  the 
latter's  mundium  ;  and  on  the  other  hand  all  children  by  a  legal 
wife,  even  though  they  were  not  the  children  of  the  husband, 
became  subject  to  the  husband's  mundium.  But  as  has  already 
been  mentioned  (supra,  p.  43),  the  fact  of  birth  by  a  legitimate 
wife  was  originally  not  sufficient,  in  itself, -to  give  the  child  a  right 
to  enter  the  family  and  house-lordship  of  the  father.  For  it 
depended  upon  his  will  whether  he  would  adopt  it  or  make  use, 
instead,  of  his  power  of  exposure.  This  stage  of  the  law  was 
succeeded  in  the  early  Middle  Ages  by  another.  The  Church's 
influence  forced  the  abandonment  of  the  power  of  exposure,  and 
thereafter  the  sole  fact  of  birth  constituted  the  basis  of  paternal 
power,  —  only  legitimate  birth,  however,  birth  in  lawful  wedlock. 
'  See  Tuor,  "Das  neue  Reelit"  (p.  Iv  supra),  193  et  seq. 
659 


§  97]  FAMILY    LAW  [BoOK   IV 

To  this  was  added  in  medieval  theory  a  requirement  that  the 
child  should  also  have  been  begotten  during  marriage ;  children 
conceived  before  and  born  during  marriage  were  not  regarded  as 
legitimate,  and  subsequent  marriage  had  no  legitimizing  effect 
upon  their  status  ("  Stellung  ").^  However,  a  father  must  have 
possessed  the  power  expressly  to  recognize  such  a  child  as  his 
own  ;  and  there  thus  developed,  as  early  as  the  later  ]\Iiddle  Ages, 
an  opposite  view  according  to  which  the  only  fact  of  importance 
was  birth  during  marriage,  the  husband  possessing  a  right  to  deny 
his  paternity  only  in  case  of  unseasonable  birth,  and  to  refute  the 
presumption  of  the  child's  legitimacy.  No  fixed  rules  existed  in 
the  older  law  for  the  decision  of  the  question  whether  a  child 
should  be  regarded  as  born  too  early,  or  (after  dissolution  of 
marriage)  too  late.  Unlike  the  Sachsenspiegel,  the  Schwaben- 
spiegel  and  various  other  medieval  legal  sources  fixed  a  certain 
number  of  weeks  for  the  duration  of  pregnancy ;  and  after  the 
Reception  authority  was  acquired  by  the  rule  of  the  common  law, 
namely,  that  birth  might  take  place  at  the  earliest  on  the  182d 
day,  and  at  the  latest  ten  months  after  conception.  The  modern 
codes  have  also  conformed  in  principle  to  this  rule,  although  the 
period  has  somewhat  varied.  The  present  Civil  Code  has  de- 
clared for  the  181st  and  302d  days,  both  inclusive  (§  1592) ;  the 
Swiss  Civil  Code  (§§  254,  252)  has  adopted  the  180th  and  the 
300th  days.  The  earlier  modern  codes  likewise  contained  detailed 
provisions  respecting  the  evidence  by  which  the  presumption  of 
the  child's  legitimacy,  arising  from  birth  within  the  period  adopted, 
could  be  rebutted  by  the  father,  —  but  only  provided  he  had 
made  no  express  or  tacit  admission  of  legitimacy.  In  place  of  the 
specific  evidence  which  they  required  to  show  the  inipossibilify  of 
paternity  (which  must  be  based  upon  impotence,  separation,  lack 
of  cohabitation,  earlier  pregnancy  of  the  wife,  and  the  like),  — 
any  allegation  of  sexual  intercourse  by  the  wife  with  other  men 
being  disregarded, — the  present  Civil  Code  has  laid  down  the 
general  rule  that  the  child  is  not  legitimate  when  it  is  manifestly 
impossible,  under  the  circumstances,  that  the  wife  could  have 
conceived  it  by  her  husband  (§  1591).  The  provisions  of  the 
Swiss  Civil  Code  (§  254)  are  similar. 

(B)  Adoption  of  children.^  —  The  adoption  of  children  was 
certainly  known  in  the  primitive  Germanic  and  even  in  the  Frank- 

J  Ssp.,  I,  ,30,  §  1. 

2  Fnppcnhcim,    "Uber    kiinstliehe    Verwandtschaft    im    permanisohen 
Recht",  in  ZK  R.  G.,  XXIX  (1908),  304-333;    "Die  Pflegekindschaft  in 

660 


Chap.  XII]  CHILDHOOD  [§  97 

ish  period,  at  least  among  some  Germanic  racial  branches ;  the 
expression  "  Affatomie  "  ("  affatomire  ",  Frankish  "  fathumjan  " 
=  to  receive  into  the  narrowest  circle  of  the  kindred,  the 
"  fathum  ")  being  employed  to  designate  it  among  the  Franks. 
In  other  words,  there  was  an  artificial  creation  of  the  filial  rela- 
tion ;  along  with  and  modeled  upon  which  there  existed  among 
the  North  Germans  an  artificial  relationship  of  brothers  and 
sisters  ("  blood  "-brotherhood),  and  among  the  West  Germans  a 
brotherhood  "  of  oath  "  ("  angelobte  Briiderschaft  ",  "  affrata- 
tio  ",  "  agermanament  ").  The  adoption  of  a  son,  which  was 
permitted  only  to  childless  parents,  or  to  others  with  the  consent 
of  all  the  issue  of  their  body  ("  leibliche  Kinder  "),  was  effected 
by  "  handing  over  the  child  to  the  adoptive  father,  whereupon 
the  latter  performed  some  action  that  showed  his  recognition  of 
the  paternal  relation  " :  ^  he  handed  him  weapons  and  thereby 
declared  him  able-bodied  ("  wehrhaft  "),  he  clipped  his  hair 
("  capillaturise  "),  set  him  upon  his  knee  or  his  lap,  wrapped  him 
in  his  own  mantle,  embraced  him.  The  child  was  thereby  adopted 
into  the  household  of  the  adoptive  father,  and  consequently  was 
subjected  to  his  household  mundium.  This  Germanic  adoption 
had  no  effects,  however,  within  the  law  of  inheritance.  This 
ancient  institute  everywhere  became  less  prominent  in  the  later 
course  of  legal  development,  and  in  some  legal  systems  (as  for 
example  in  the  English)  adoption  remained  absolutely  unknown. 
But  wherever  still  practiced  in  the  Middle  Ages  it  was  no  longer 
the  basis  of  paternal  authority,  for  legitimate  birth  alone  had  been 
become  decisive  of  the  latter.  With  the  Reception,  the  Roman 
institute  of  adoption  was  introduced  into  Germany.  It  also 
attained  no  great  practical  importance,  however ;  the  greater 
nobility  did  not  recognize  it  at  all.  At  the  same  time,  the  rules  of 
the  Roman  law  were  modified  both  in  the  common  law  and  in 
the  modern  codes ;  in  particular,  a  single  institute,  which  re- 
sembled most  nearly  the  "  adoptio  minus  plena  ",  was  substituted 
for  the  three  Roman  forms  ("  arrogatio  ",  "  adoptio  plena  ", 
"  adoptio  minus  plena  ").  By  the  adoption  of  a  child  under 
modern  law  a  relation  is  established  which  is  copied  after  that 
existing  between  actual  ("  leiblich  ")  parents  and  children,  with- 
out, however,  producing  all  the  legal  consequences  of  natural 

der  Graugans",  in  "Festgabe  fiir  Brunner"  (1910),  1-15;  Rieischel,  art. 
"Adoption"  in  Hoop's  "Reallexikon",  I  (1911),  38  et  seq.,  and  art.  "Bluts- 
briidersehaf t "  in  ibid.,  297. 

1  Brunner,  "Geschichte",  I  (2d  ed.),  103. 

661 


§  97]  FAMILY    LAW  [BoOK   IV 

childhood,  or  breaking  all  relation  of  the  adoptive  child  with  its 
natural  family.  The  Civil  Coile  has  conformed  in  most  ^respects 
to  the  preexisting  law.  But  whereas  this  did  not  give  to 
the  adoptive  father  the  rights  of  a  natural  father  in  the  property 
of  the  adoptive  child,  —  the  administration  and  profit  of  the 
property  of  a  minor  adoptive  child  being  given,  on  the  contrary, 
to  its  natural  father  or  guardian,  and  of  an  adult  adoptive  child  to 
himself,  —  the  present  Civil  Code  has  given  to  the  adoptive  parent 
both  complete  paternal  power  over,  and  usufruct  of  the  property 
of,  an  adoptive  child  under  age  (§  1757).  On  the  other  hand  it 
has  withdrawn  from  the  adoptive  parents  all  rights  of  inheritance 
in  the  property  of  the  adoptive  child  (§§  1759,  1764),  while  leav- 
ing to  such  child,  in  accord  with  the  earlier  law,  its  rights  of  in- 
heriting both  from  its  blood  kindred  and  from  its  adoptive  parents 
(but  not  from  the  latter's  kindred).  The  Swiss  Civil  Code  has 
taken  the  same  attitude  (§§  264-269). 

(3)  Determination  of  paternal  power.  —  It  has  already  been  re- 
marked under  the  law  of  persons  {supra,  pp.  55  et  seq.)  that,  from 
the  earliest  times,  the  primitive  Germanic  and  later  German  law 
treated  the  father's  house-power  over  his  children  as  ending,  not 
with  their  attainment  of  a  certain  age,  nor  with  the  declaration  of 
their  majority  by  the  grant  of  arms  ("  Wehrhaftmachung  "),  but 
with  their  departure  from  the  paternal  household. 

In  the  case  of  sons  this  departure  ordinarily  occurred  when  they 
established  their  own  households,  which  was  customarily  asso- 
ciated with  their  marriage,  although  it  was  not  impossible,  par- 
ticularly in  rural  regions,  that  they  brought  their  wives  to  their 
father's  estate  ("  Ilof  "),  and  so  remained  in  the  paternal  house- 
hold even  after  marriage.  In  early  times  an  economic  separation 
was  involved,  also,  in  their  joining  the  retinue  (conutatus)  of  a 
lord,  and  this  ended  the  paternal  power.  In  order  to  terminate 
the  father's  i)()wer  without  division  of  the  household  resort  was 
had  in  the  Prankish  period  to  a  simulated  adoption,  the  child 
being  adopted  by  a  third  person  who  then  returned  it  to  its  father's 
house.  It  may  be  assumed  that  a  son  who  had  reached  majority 
could  demand  emancipation  from  the  paternal  household,  and 
either  an  accounting  for  his  property  or  a  suitable  outfit.  Ac- 
cording to  later  legal  sources,  a  division  of  the  household,  when 
it  was  not  the  consequence  of  marriage,  required  "  a  formal  legal 
act,  by  which  the  father,  in  court,  '  cut  his  son  off  from  bread  ', 
at  the  same  time  assigning  to  him  a  certain  income;  an  action 
which  was  known  as  '  exseparare  ',  *  emancipare  ', '  foris  familiare  ', 

662 


Chap.  XII]  CHILDHOOD  [§  97 

'  mettre  hors  de  pain  et  pot  ',  '  to  cut  off  bread  and  duty.'  "  ^ 
The  mundium  of  the  father  was  no  longer  reconcilable  with  the 
child's  economic  independence,  with  the  "  possession  of  his  own 
hearth  and  pot  " ;  for  so  long  as  the  son  dwelt  in  the  father's 
house,  so  long  as  he  "  brought  home  honest  ('  keusches  ')  bread  ", 
or  "  ate  jam  and  bread  of  his  parents  ",  use  could  be  made  of  the 
most  important  of  paternal  powers,  the  usufruct  of  the  child's 
property.  A  partition  of  property  was  therefore  the  decisive  fact. 
In  some  legal  systems  this  had  the  effect  of  terminating  the  pater- 
nal power  even  when  the  son  continued  to  live  in  his  father's 
house  after  the  partition,  —  that  is,  as  the  master  of  his  own 
estate,  distinct  from  that  of  his  father ;  or  when  he  returned  to 
his  father's  house  after  an  absence  of  some  duration  (defined  by 
statute).  In  this  case,  the  formality  of  a  judicial  decree  of  par- 
tition was  always  necessary. 

The  daughters  were  always  freed  of  paternal  power  by  mar- 
riage, so  long  as  sex-guardianship  existed  only  by  marriage,  since 
they,  by  force  of  law,  were  subject  to  the  mundium  of  their  hus- 
bands. 

Even  after  the  Reception  both  these  grounds  of  the  old  Ger- 
manic law  for  the  determination  of  paternal  power  everywhere 
retained  their  force.  Although  later  legal  theory  designated  them 
"  emancipatio  Saxonica  "  (sometimes,  "  tacita  "),  this  was  not 
because  they  embodied  particularistic  Saxon  law,  for  the  old  rules 
in  part  retained  authority  especially  long  in  South  Germany,  — 
in  Switzerland  down  into  the  1800  s,  and  in  places  even 
until  1881 ;  "  but  because  it  was  a  custom  in  North  Germany, 
from  the  1500  s  onward,  to  designate  as  '  Saxon  '  any  rule  of 
native  law  that  had  maintained  itself  against  the  Roman."  - 
Against  this  deeply  rooted  legal  idea  that  Justinian  institute  of 
emancipation,  which  could  only  result  from  an  express  release 
("  Entlassung  ")  from  the  father's  power,  made  little  headway 
in  practice,  notwithstanding  its  recognition  by  the  common  law 
and  its  adoption  in  most  of  the  modern  codes.  The  diffi- 
culty of  proving  in  any  particular  case  an  actual  economic  sepa- 
ration and  indepenckMice  of  households  resulted  more  and  more 
in  modern  times  (earhest  of  all  in  the  Austrian  and  the  Moravian 
law)  in  a  treatment  of  paternal  power  as  terminating  upon  the 
child's  attainment  of  majority,  or  upon  the  declaration  of  his 
majority. 

'  Brunncr,  "Griindziige"  (5th  ed.),  229. 
*  Heusler,  "lustitutioiu'ii",  II,  441. 

063 


§  97]  FAMILY    LAW  [BoOK   IV 

Tliis  rule  lias  been  adopted  also  by  the  Civil  Code  (§  1626), 
following. the  example  of  tiie  Austrian  Code,  the  Code  Civil,  the 
Zurich  Code,  and  other  statutes.  Even  as  respects  minor  daugh- 
ters the  paternal  power,  therefore,  no  longer  terminates  with  their 
marriage;  only  the  parent's  duty  of  personal  care  then  ceases. 
That  the  Swiss  Civil  Code  (§  14),  on  the  other  hand,  has  again 
adopted  the  old  rule  "  marriage  give  mundium  ",  has  already  been 
remarked  (supra,  j).  59).  The  parents  retain,  however,  a  claim 
to  household  services  against  a  child,  even  though  adult,  that 
remains  in  the  paternal  household.  And  just  as  the  older  law 
recognized  destruction  of  the  father's  power,  aside  from  the  ordi- 
nary reasons  for  its  termination,  in  certain  extraordinary  cases, 
—  by  forfeiture,  by  enfranchisement,  by  adoption,  —  so  in  the 
present  law  there  exist  similar  provisions. 

(II)  The  Legal  Relation  of  the  Mother  to  her  Children.  Parental 
Power.  —  According  to  the  view  of  the  Germanic  and  German 
law,  the  powers  that  inured  to  the  father  over  his  children  were, 
as  already  mentioned,  consequences  of  the  mundium  that  belonged 
solely  to  him  as  house-lord.  Inasmuch  as  the  wife,  exactly  like 
the  children,  was  subjected  to  this  mundium,  instead  of  sharing 
control  over  them  with  the  husband,  it  followed  that  there  existed 
in  the  older  Germanic  law  only  a  paternal,  but  no  maternal  and 
consequently  no  parental,  power  over  children.  True,  the 
mother  was  not  "  as  respects  the  power  of  the  father  a  child 
among  children,  but  enjoyed  a  motherly  authority  over  her  own 
children  that  the  law  could  not  ignore  " :  ^  she  was  bound  to 
cooperate  in  the  physical  and  si)iritual  care  and  education  of  the 
child,  and  the  chief  responsibility  in  this  connection  doubtless 
rested,  ordinarily,  upon  her.  Doubtless  there  also  existed  on 
the  child's  part  a  duty  of  obedience  to  both  parents.  For  these 
reasons  the  French  legal  sources  and  law-books  spoke  of  the 
"  garde  ou  mainburnie  "  exercised  over  the  children  by  "  pere  et 
mere."  ^  That  this  personal  authority  of  the  mother  did  not 
affect  the  paternal  power,  however,  follows  from  the  fact  that  the 
last  word  was  everywhere  conceded  to  the  father.  This  is  also 
seen,  for  example,  in  the  Roman  law,  which  did  not  regard  the 
"  patria  potestas  "  as  in  any  wa}^  lessened  by  the  power  of  training 
and  caring  for  the  child  that  was  conferred,  under  some  circum- 
stances, upon  the  mother,  to  the  exclusion  of  the  father.^     It  is 

'  Iluher,  "Schw.  Privatrecht",  IV,  480. 

2  V.  Snlis,  "BeitniK  ziir  (rcschir-htc  der  vaterlichon  Gewalt  nach  alt- 
franzosisohem  Recht",  in  Z=.  R.  G.,  VII  (1887),  137-204. 
'  Ibid.,  153. 

664 


Chap.  XII]  CHILDHOOD  [§  98 

possible  that  the  Germanic  law,  had  it  continued  to  develop  with- 
out interference,  might  have  evolved  from  the  powers  enjoyed  by 
the  mother  (the  right  of  training,  the  right  of  consenting  to  mar- 
riage, of  naming  a  guardian,  and  particularly,  the  right  of  guardian- 
ship accorded  by  some  statutes  to  a  widow)  a  parental  power  inur- 
ing more  or  less  equally  to  both  the  parents  ;  just  as  this  happened 
(notably  as  regards  the  marital  community  of  goods)  in  the  cus- 
tomary law  in  France,  where  it  received  statutory  recognition  in 
the  Code  Civil.  In  Germany,  however,  such  a  development  was 
temporarily  prevented  by  the  reception  of  the  Roman  law,  which 
had  no  place  for  a  parental  power.  The  demand  made  by  the 
law  of  nature  for  a  transformation  of  paternal  into  parental 
power  was  acceded  to  in  but  few  statutes,  and  even  in  these  only 
as  respects  particular  rules.  The  Civil  Code  introduced  for  the 
first  time  a  fundamental  improvement  in  this  matter  upon  the 
earlier  law :  it  has  created  a  unitary  institute  of  parental  power. 
This  parental  power,  whose  substantive  content  is  of  traditional 
extent,  although  subject  as  already  remarked  to  governmental 
oversight  and  cooperation,  inheres  primarily  in  the  father ;  the 
final  word,  also,  always  rests  with  him.  But  the  mother  is  em- 
powered as  well  as  he  to  fulfill  independently  the  duty  of  personal 
care ;  above  all,  in  case  of  incapacity  on  the  father's  part  or 
when  his  parental  power  is  suspended  the  full  parental  powers 
pass  to  the  mother  (save  that  in  these  cases,  and  also  when  the 
father  is  placed  under  guardianship  as  a  dipsomaniac,  the  right 
of  usufruct  in  the  child's  estate  remains  in  the  father) ;  and  finally, 
a  widow  completely  takes  the  father's  place,  so  that  the  appoint- 
ment of  a  guardian  is  unnecessary.  The  wife,  however,  may 
be  given  an  adviser  ("  Beistand  ") ;  and  a  widow,  in  case  of  re- 
marriage, loses  her  powers,  except  those  of  personal  care  for  the 
child.  With  these  rules  of  the  German  law  the  Swiss  Civil  Code 
substantially  agrees. 

§  98.  Legitimate  Children :  (2)  Relations  under  the  Property 
Law.  (I)  During  the  Continuance  of  Paternal  or  Parental  Power. 
(1)  The  older  law.  —  In  the  view  of  Germanic  law  children  were 
always  regarded  as  capable  of  holding  property,  and  although  all 
the  earnings  from  the  labor  of  a  child  living  in  its  father's  house- 
hold may  possibly  have  inured,  originally  and  generally,  to  the 
father,  nevertheless  children  could  acquire  separate  property  by 
inheritance,  particularly  from  the  side  of  their  mother,  or  by  gift. 
Naturally,  however,  the  relations  of  children  under  the  property 
law  were  shaped  by  the  father's  right  of  mundium,  just  as  they 

GG5 


§  98]  FAMILY    LAW  [BoOK   IV 

were  adjusted  on  the  other  hand  to  the  conception  of  the  house- 
hold estate.  Tlie  property  of  the  children,  like  that  of  the  wife, 
constituted  a  portion  of  the  household  property,  and  therefore  the 
father  received  in  it  also,  by  virtue  of  his  household  mundiuni,  a 
seisin  "  in  niundium  "  ;  that  is,  a  right  of  usufruct  and  a  duty  of 
administration.  But  it  remained  the  property  of  the  child.  The 
father  was  hound  to  deliver  it  to  the  child  unlessened  in  value 
upon  the  termination  of  his  paternal  authority;  and  consequently 
with  indemnity  for  any  diminution  of  value  resulting  through  his 
fault.  The  rule  prevailed,  "children's  property  shall  neither  in- 
crease nor  diminish  ",  "  children's  property  is  '  iron  '  property."  ^ 
Inasmuch  as  the  father  held  a  seisin  "  in  mundium  "  he  disposed 
freely  of  the  child's  chattels,  just  as  a  husband  disposed  of  the 
chattels  brought  with  his  wife  in  marriage  under  the  system  of 
administrative  community.  On  the  other  hand,  in  alienations  of 
and  charges  upon  the  child's  lands  he  was  subject  to  the  owner's 
assent  in  the  same  way  as  in  the  law  of  marital  estates  ;  save  that 
the  child  could  give  such  assent  only  after  attaining  majority,  so 
that  the  effectiveness  of  such  dispositive  acts  remained,  until 
then,  doubtful.  The  child  itself  was  unable  to  make  legally  bind- 
ing dispositions  of  its  property.  On  the  contrary,  any  juristic 
acts  it  concluded  were  ineffective  as  against  the  father,  exactly  as 
were  those  of  his  wife.  Moreover,  the  child  itself  was  not  bound 
by  juristic  acts  concluded  during  its  minority ;  it  could  revoke 
them  within  a  year  after  attaining  majority,  and  only  when  this 
was  not  done  did  they  acquire  definitive  efficacy.  The  father, 
therefore,  held  the  property  of  his  child  absolutely  in  his  hand ; 
all  the  profits  therefrom  went  to  him  ;  so  long  as  his  paternal 
power  existed  he  need  deliver  nothing  from  the  child's  estate.- 
In  contrast  to  and  as  the  reverse  side  of  this  far-reaching  right,  in 
which  the  nature  of  the  paternal  mundium,  as  a  power  existing 
in  the  father's  interest,  was  most  e\'idently  expressed,  the  old  law 
recognized  the  rule  that  the  father  was  liable  with  his  own  property 
for  torts  committed  by  the  child  (supra,  pp.  530,  580),  and  could 
not  free  himself  from  such  liability,  under  principles  generally  rec- 
ognized, except  by  abandonment  of  the  child,  —  that  is,  by  driving 
him  from  the  household  community.  It  was  only  in  the  course 
of  the  Middle  Ages  that  the  majority  of  legal  systems  restricted 
this  paternal  liability  to  the  child's  property  then  in  the  father's 
hands.  "With  these  strong  rights  of  the  father  in  his  children's 
property  there  was  united  (a  point  particularly  important  in  the 
»  Ssp.,  I.  11.  »  Heusler,  "Institutionen",  II,  448. 

666 


Chap.  XIIJ  CHILDHOOD  [§  98 

early  medieval  law)  a  right  of  the  children  in  the  property  of  their 
father;  a  right  which,  as  already  remarked,  continued  to  be  in- 
fluenced by  the  old  collective  right  of  the  household,  —  constituted 
of  father  and  children,  —  in  the  family-property.  The  children, 
in  whom  was  "  honored  the  future  continuation  of  the  house  'V 
were  conceded  rights  in  expectancy  and  of  co-alienation  (supra, 
pp.  304  et  seq.)  that  limited  in  their  interest  the  ownership  of  the 
father,  and  assured  to  them  rights  of  cooperation  in  dispositions 
of  the  household  lands.  Later,  it  is  true,  this  strong  right  in  ex- 
pectancy became  less  prominent,  being  limited  to  a  claim  for 
maintenance  in  the  paternal  house  and,  in  default  of  independent 
property,  a  proper  outfit  ("  Ausstattung  ")  on  departure  there- 
from. 

(2)  The  modern  laio.  —  After  the  Reception  the  Roman  theory 
of  the  "  peculium  "  was  united  with  the  native  traditional  insti- 
tutes, and  that  property  whose  usufruct  and  administration  con- 
tinued to  be  accorded  to  the  father  in  the  old  manner  was  re- 
garded as  a  "  peculium  adventicium  regulare  ",  i.e.  as  property 
subject  to  restrictions  ("  unfree  "  property)  ;  whereas  the  property 
that  was  recognized  as  the  child's  own  ("  free  ")  was  treated  in  ac- 
cordance with  the  rules  of  the  "  peculium  castrense  "  or  "  quasi 
castrense."  In  this  process,  however,  the  concept  of  the  "  free  " 
property  was  generally  considerably  enlarged,  —  for  example  by 
the  Prussian  "  Landrecht  "  and  the  Code  Civil,  —  so  as  to  include 
in  it  all  acquests  which  a  child  living  under  mundium  owed  to  occu- 
pancy of  a  public  office,  or  to  scientific  or  artistic  dignities  or  activi- 
ties, to  its  skill,  to  its  industry,  or  to  other  services  for  other 
people.  This  concept  the  present  Civil  Code  has  also  adopted 
(§  1051),  adding  to  its  content  things  intended  exclusively  for  the 
child's  personal  use  (§  1G50),  so  that  now  its  "  free  "  property 
corresponds  to  the  wife's  reserved-estate  under  that  system  of 
marital  property  in  which  the  husband  enjoys  the  profits  and 
administration.  In  this  "  free  "  property,  —  which  modern  legal 
systems,  including  the  Civil  Code,  have  treated  as  including  the 
Roman  "  peculium  adventicium  irregulare  "  (property  that  is 
given  to  the  child  upon  condition  that  the  father  shall  hold  powers 
of  administration  only),  —  the  father  enjoys  no  usufruct ;  although 
he  does  hold  a  tutelary  administrative  power,  exercisable  solely 
in  the  child's  interest,  so  long  as  it  is  a  minor.  The  father  adminis- 
ters and  collects  the  profits  from  all  its  other  property,  —  that  is, 
from  the  "  unfree  "  property,  —  under  the  same  rules  as  the  hus- 
1  Huher,  "Sehw.  Privatrecht",  IV,  488. 
667 


§  98]  FAMILY    LAW  "^  [BoOK   IV 

band  ci)llects  them  from  property  brought  with  the  wife  in  mar- 
riage, although  with  greater  freedom.  Nevertheless,  under  the 
present  Civil  Code  he  requires  for  the  performanee  of  eertain  ju- 
ristic acts  an  authorization  from  the  Guardians'  Court.  Under 
modern  legal  systems,  including  the  Civil  Code,  only  the  child's 
own  property  is  liable  for  its  debts.  The  Swiss  Civil  Code  gives 
even  greater  freedom  to  the  parents,  and  defines  in  somewhat 
different  manner  the  amount  of  the  child 's-property  that  is  ex- 
cepted from  the  parent's  usufruct  (§  290  ct  scq.). 

(II)  After  Termination  of  Paternal  or  Parental  Authority.  — 
When  the  father's  authority  was  terminated  by  the  son's  departure 
from  the  paternal  household  or  by  the  daughter's  marriage,  there 
resulted,  of  course,  a  complete  severance  of  the  property  relations 
theretofore  existing  between  father  and  child.  If,  on  the  other 
hand,  death  terminated  the  father's  paternal  power  or  the 
parental  power  of  the  mother,  it  was  not  always  necessary  that  a 
partition  of  the  property  should  be  made  between  the  surviving 
parent  and  the  children.  On  the  contrary  it  was  a  widely  preva- 
lent custom  to  continue  the  old  community  household,  such 
parent  and  the  children  remaining  in  possession  "  in  undivided 
seisin  "  {"  ungeteilte  Were  "). 

The  legal  nature  of  this  relation  depended  upon  the  particular 
sj^stem  of  marital  property  that  had  prevailed  during  the  marriage  ; 
it  has  therefore  already  been  discussed  in  the  sections  relative  to 
that  subject  (pp.  G28  et  seq.,  649  et  seq.,  641  ct  seq.). 

Beyond  a  reference  to  that  discussion  we  will  here  only  repeat 
that  wherever  an  administrative  community  prevailed  it  was 
commonly  continued  after  the  father's  death  in  the  form  of  the 
widow's  "  Beisitz  ",  either  until  the  children's  dej)arture  from  the 
parental  household  or  so  long  as  the  widow  lived  or  remained  un- 
married. This  rule  was  especially  common  in  the  Ostphalian 
law.  Later,  there  was  frequently  recognized  (for  exami)le  in  the 
revision  of  1856  of  the  Liibeck  law)  a  so-called  "  community  of 
goods  mortis  causa  ",  by  virtue  of  which  the  property  that  had 
been  physically  united  in  the  hands  of  the  husband  was  left,  after 
the  death  of  either  parent,  in  the  hands  of  the  survivor  as  a  legally 
unitary  mass.  The  majority  of  modern  statutes,  however,  —  as 
for  example  the  Prussian  "  Allgemeines  Landrecht,"  —  abandoned 
the  community  mortis  causa,  and  treated  the  marital  property 
as  always  dissolved  under  these  circumstances ;  the  children  in- 
herited the  property-  of  the  dead  par<Mit,  while  a  surviving  husband 
received  a  statutory  portion.     The  Civil  Code  treats  every  right 

608 


Chap.  XII]  CHILDHOOD  [§  98 

of  the  father  in  the  maternal  heritage  ("  Muttererbe  ")  and  every 
right  of  the  mother  in  the  paternal  heritage  ("  Vatererbe)  as  extin- 
guished by  the  child's  majority  ;  nevertheless  the  usufruct  in  such 
heritable  portion  of  the  children  may  be  given  to  the  surviving 
spouse  by  a  disposition  mortis  causa. 

Wherever  there  existed  a  community  of  goods,  the  older  law,  as 
has  been  already  mentioned,  adopted  various  measures  in  order 
to  postpone  a  partition  of  the  property  between  the  surviving 
spouse  and  the  children  after  the  death  of  one  consort.  Either 
such  survivor  was  given  a  possession  involving  rights  of  adminis- 
tration and  usufruct  in  the  children's  shares,  —  the  collective 
property  being  apportioned  in  ideal  shares  between  such  survivor 
and  the  children  (this  rule  prevailed,  for  example,  in  East  and  West 
Prussia  and  in  Posen) ;  or,  where  the  entire  marital  estate  passed 
into  the  sole  ownership  of  the  surviving  spouse,  the  children  were 
given  an  interest  in  property  "  sequestered  "  ("  verfangen  ")  for 
them,  at  least  to  the  extent  of  an  irrevocable  right  in  expectancy 
to  the  whole  future  heritage  of  their  surviving  parent  (so,  for  ex- 
ample in  Hamburg  and  Bremen) ;  or,  finally,  in  place  of  a  con- 
tinued marital  community  proper  ("  communio  bonorum  proro- 
gata  "),  which  could  only  exist  following  a  general  community  of 
goods,  the  relationship  of  collective  hand  that  existed  between 
the  parents  was  regarded  as  still  existing  between  the  surviving 
parent  and  the  children.  This  last  rule  had  earlier  existed  (for 
example)  in  Westphalia,  and  also  in  Hamburg  and  Bremen  in 
favor  of  the  widow,  and  has  been  adopted  by  the  Civil  Code.  It 
recognizes  the  continued  marital  community  as  arising  by  rule  of 
law  after  a  general  community  of  goods  in  default  of  other  agree- 
ment, and  in  place  of  a  chattel  community  as  a  result  of  special 
agreement. 

All  community  relations  between  a  surviving  parent  and  chil- 
dren terminated,  save  with  rare  exceptions,  in  case  of  remarriage 
by  the  surviving  spouse.  Nevertheless,  it  was  necessary  under 
some  circumstances  to  prolong  the  community  through  such  a 
second  marriage,  particularly  on  account  of  the  difficulties  asso- 
ciated with  partition,  and  the  prejudices  that  might  result  there- 
from. Herein  lay  the  reason  for  the  appearance  of  the  institute 
of  "  single  proles  "  ("  Einkindschaft  ",  "  unio  prolium  ")  ^  which 
was  developed  most  especially  in  the  territory  of  the  Franconian 
law  between  the  1200  s  and  the  end  of  the  1()00  s. 

According  to  the  older  Franconian  law,  agreements  creating  a 
1  Herbert  Meyer,  "Die  Einkindschaft"  (1900). 
669 


§  9S]  FAMILY    LAW  [BoOK   IV 

"  single  proles  "  (single  family),  which  usually  were  made  before 
or  immediately  after  the  contraction  of  a  second  marriage,  were 
contracts  between  the  children  of  the  first  marriage  on  the  one 
hand,  and  the  sj)ouses  in  the  new  marriage  on  the  other  hand,  by 
which  the  children  of  the  first  marriage  (the  "  Vorkinder  ",  "  first 
children  ")  were  made  the  legal  equals,  in  herital  rights,  of  the 
expectant  children  of  the  second  marriage  (the  "  Nachkinder  ", 
"second  children").  The  first  children  renounced  their  rights 
in  the  property  of  the  first  marriage  in  favor  of  the  spouses  of 
the  second  marriage,  and  in  exchange  were  substituted  by  the 
latter  in  the  position  of  actual  children  of  the  second  marriage. 
They  thus  acquired  precisely  the  same  rights,  as  respected 
property  and  inheritance,  as  the  second  children.  The  children 
of  the  two  marriages  being  thus  treated  as  issue  of  one  marriage 
for  these  purposes,  there  naturally  soon  came  to  attach  to  the  con- 
tract consequences  purely  of  family-law.  It  was  only  later  that 
this  institute  of  "  Einkindschaft  "  came  to  be  regarded  as  strictly 
a  contract  of  inheritance,  and  therefore  again  restricted  to  effects 
within  the  law  of  inheritance ;  an  irrevocable  contractual  right  of 
inheritance  being  conceded,  however,  to  the  children.  Inasmuch, 
however,  as  injustice  might  be  involved  in  the  equalization  under 
the  inheritance  law  of  children  of  different  marriages,  and  the 
contract  might  be  a  risky  one  either  for  the  first  or  (possibly)  for 
the  second  children,  it  frequently  happened  that  in  case  the  first 
children  brought  property  into  the  secontl  marriage,  —  and  prob- 
ably also  as  regards  the  second  children,  —  that  a  corresponding 
advance  was  agreed  upon,  whicli  was  paid  to  them  by  way  of 
preference  in  the  future  division  of  the  inheritance.  The  Prussian 
Landrecht  made  such  an  advance  to  the  first  children  obligatory. 
This  institute  of  "  Einkindschaft  "  ended  with  the  death  of  all 
the  children,  \\At\\  their  departure  from  the  parental  household, 
with  the  death  or  divorce  of  the  spouses,  and  doubtless  also  when 
the  second  marriage  proved  childless,  or  when  one  of  the  spouses 
died  and  the  other  remarried.  Its  termination  could  also  be 
demanded  by  the  children  and  ordered  by  the  court.  "  Ein- 
kindschaft "  continued  to  exist  after  the  Reception,  particularly 
in  the  regions  of  Franconian  law,  but  also  for  example  in  Ham- 
burg, Bremen,  Liibeck,  and  Riga,  and  was  regulated  by  many 
modern  statutes  (for  example  in  the  Prussian  "  Landr(>cht  "),  but 
in  recent  times  it  has  more  and  more  tended  to  disappear  from 
legal  life.  Many  legal  systems  were  unfriendly  to  it,  some,  as  for 
example  the  Austrian  Code,  denying  it  legal  validity ;  and  others, 

670 


Chap.  XII]  CHILDHOOD  [§  99 

as  for  example  the  Baden  Territorial  Law,  abolishing  it.  The 
Civil  Code,  like  the  Code  Civil,  has  abrogated  it  by  failure  to 
adopt  it ;  since  1900  agreements  creating  "  Einkindschaften " 
are  invalid.     The  Swiss  Civil  Code  has  taken  the  same  attitude. 

§  99.  Illegitimate  Children.^  (I)  The  older  Germanic  Law.  — 
Inasmuch  as  the  ancient  Germanic  law  recognized,  in  addition  to 
marriage,  other  forms  of  sexual  union,  illegitimate  birth  was  by 
no  means  a  ground  at  that  time  for  lessened  legal  capacity  or  for 
a  lower  social  status^.  Children  begotten  outside  wedlock  by  a 
free  man  upon  a  free  woman  during  notorious  cohabitation,  that 
is  in  concubinage  (so-called  "  Kebs-  ",  "  Friedelehe  " ;  Spanish 
"  barragania  "),  were  known,  —  because  they  were  not  born  of  a 
marriage  publicly  contracted  by  betrothal  and  espousal,  and  as 
contrasted  with  "full-born"  (Lombard  "fulboran")  children,  —  by 
names  such  as  Old  High  G.  "  hornung  ",  Old  Norse  "  hornungr  " 
(=  begotten  in  a  corner,  "  Winkelkind  "),  Mid.  High  G.  "ban- 
chart  "  ("  Bankert  ",  begotten  on  a  bench)  ;  among  which  the 
Germanic-Romanistic  (or  Celtic  ?)  word  "  bastard  "  seems  to 
belong.  Liasmuch  as  the  father  held  no  mundium  over  a  free 
concubine  for  lack  of  betrothal,  the  children  that  were  begotten 
upon  her  were  not  subject  to  his  mundium  but  to  that  of  her  guardian. 
Nevertheless,  if  they  had  been  recognized  by  their  father  they  be- 
longed to  his  household  and  his  family,  along  with  his  legitimate 
chiklren.  Illegitimate  sons  of  this  class,  therefore,  because  of 
their  belonging  to  the  household,  had  herital  rights  in  their  father's 
property  along  with  his  legitimate  sons ;  at  least  limited  rights. 
In  consequence  of  this  principle  the  illegitimate  offspring  of  rulers, 
both  among  the  North  and  East  Germans  and  also  among  the 
Franks,  shared  with  the  legitimate  succession  to  the  throne,  and 
inherited  the  royal  treasure  and  the  royal  lands.  So  late  as  under 
the  Merovingians  royal  bastards  were  the  exact  equals,  under  the 
inheritance  law,  of  the  king's  legitimate  sons.  But  among  the 
Carolingians  their  position  became  less  favorable :  as  against  legit- 
imate sons  they  no  longer  had  any  right  of  succession  to  the 
throne,  being  entitled  to  succeed  only  in  default  of  legitimate 
issue.     It  was  by  virtue  of  this  right  that  Arnulf  ascended  the 

'  Wilda,  "Von  den  unecht  geborenen  Kindern",  in  Z.  deut.  R.,  XV 
(1855),  237  et  seq.;  Maurer,  "Die  unilehte  Geburt  naeh  altnordisohem 
Reehte",  in  K.  Bayer.  Akad.  Wiss.,  Sitz.  Ber.,  1883.  3-80;  Brunncr, 
"Die  uneheliche  Vaterschaft  in  den  altesten  frermanisehen  Rechten", 
in  Z2.  R.  G.,  XVII  (189G),  1-32;  IF.  Sickd,  "Das  Tlironfolgerecht  der 
uneheliehen  Karolinp;er",  in  Z^.  R.  G.,  XXIV  (1903).  110-147;  Rietschel, 
art.  "Bastard"  and  "Beischliiferin",  in  //oop's  "Reallexikon",  I  (1912), 
174-177,  214-216.     Cf.  Fehr,  op.  cit.  (p.  057  supra),  201  et  seq. 

671 


§  99]  FAMILY    LAW  [BoOK   IV 

German  throne.  The  best  known  proof  of  the  fact  that  it  also 
existed  among  the  West  Frankish  Normans  is  the  case  of  Wilham 
the  Conqueror ;  the  nickname  "  Bastard  "  always  chmg  to  him. 
However,  as  already  mentioned,  it  was  always  a  precondition  to 
the  inclusion  of  recognized  bastards  in  the  household  of  their 
father,  and  to  their  claims  of  inheritance,  that  they  should  have 
been  born  of  a  free  woman.  Under  most  legal  systems  the  children 
of  an  unfree  woman  were  likewise  unfree,  in  accord  with  the  prin- 
ciple that  "  the  child  follows  the  worser  hand  ",  and  a  right  of 
inheritance  was  totally  unknown  among  unfree  persons.  Among 
the  West  Germanic  racial  branches  the  position  of  concubinal 
children  was  most  favorable  among  the  Lombards.  They  there 
enjoyed,  equally  with  legitimate  children,  statutory  rights  of  in- 
heritance and  rights  in  expectancy,  a  share  in  the  betrothal 
gift  paid  upon  the  marriage  of  their  legitimate  and  illegitimate 
sisters,  and  likewise  in  the  wergeld  payable  for  a  brother  who 
was  killed ;  and  they  were  counted  among  the  oath-helpers 
of  the  family.  According  to  the  Lombard  law,  indeed,  a  son 
begotten  in  concubinage  upon  a  man's  own  slave  seems  to 
have  been  regarded  as  personally  free  if  his  father  recognized 
him,  without  its  being  necessary  that  he  be  first  formally  emanci- 
pated.^ 

LThe  position  of  illegitimate  children  became  worse  under  the 
influence  of  the  Church.  This  was  a  necessary  consequence  of  its 
battle  against  every  form  of  sexual  intercourse  outside  of  marriage. 
"  The  ill-will  of  the  Church  toward  illegitimate  children  went  hand 
in  hand  with  its  condemnation  of  sexual  unions  between  men  and 
women  outside  of  marriage.  Just  as  the  Church's  *  horror  san- 
guinis '  led  eventually  to  the  base  status  of  the  executioner,  so  its 
*  horror  adulterii  '  had  the  effect  of  lessening  the  legal  capacity 
of  illegitimate  children."  ^  True,  there  were  long  preserved  many 
traces  of  their  one-time  membership  in  the  family ;  as  for  example 
the  right  enjoyed  by  bastards  among  the  old  imperial  nobility, 
down  into  the  1700  s,  to  bear  the  name  and  arms  of  their  father. 
But  the  legal  status  in  which  unfree  illegitimate  children  had  earlier 
found  themselves  was  now  attributed  to  all  persons  of  illegitimate 
birth.  "  As  respects  the  capacity  of  bastards  to  inherit,  or  at 
least  of  bastards  who  died  without  descendants  born  in  wedlock, 
French,  Dutch,  and  German  legal  systems  of  Frankish  origin 
start  from  the  principle,  *  neque  genus  neque  gentem  habent  bas- 

'  Brunner,  art.  just  cited,  15. 

2  Brunner  in  7J.  R.  (}.,  XXIII  (1902),  199  et  seq. 

672 


Chap.  XII]  CHILDHOOD  [§  99 

tardi  ',  '  batards  n'ont  point  de  ligne.'  "  ^  With  few  exceptions, 
all  illegitimate  children,  including  those  born  free,  lost  their  right 
to  inherit  from  their  father,  retaining  merely  a  right  of  inheritance 
from  their  unmarried  mothers,  —  this,  however,  alwaysT  At  a 
time  when  a  passive  herital  capacity  was  accorded  to  all  unfree 
persons,  or  when  unfreedom  itself  had  become  a  waning  institu- 
tion, this  rule  was  justified  by  the  argument  that  although  illegiti- 
macy of  birth  might  be  recognized  as  against  the  father  no  child 
could  be  a  concubinal  child  in  relation  to  its  mother:  "  nul  n'est 
batard  de  sa  mere  ",  "  ten  oensien  van  de  moeders  syn  onechte 
kinderen  soo  veel  als  echten."  By  far  the  most  unfavorable  posi- 
tion of  illegitimate  children  was  that  assigned  them  in  the  Saxon 
law.  Under  this  they  lost  even  the  right  of  inheriting  from  their 
mother  and  her  kindred ;  moreover,  they  could  transmit  property 
to  their  children  only,  who  were  likewise  regarded  as  illegitimate 
under  all  circumstances.^  Only  a  few  systems  of  town-law  treated 
illegitimate  children  better.  A  few  other  legal  systems  (for  ex- 
ample the  Frisian)  made  it  possible  for  the  father  to  make  gifts 
to  his  illegitimate  child  without  the  necessity  of  the  heir's  con- 
sent, —  so-called  "  bastard  gifts  "  ("  Hornungsgaben  ").  i^With 
the  right  of  inheritance  there  also  disappeared  the  right  of  succes- 
sion to  the  throne.  The  Sachsenspiegel  lays  down  the  rule  that  a 
German  king  must  have  been  born  free  and  in  wedlock.^  The 
consequences  of  blemished  civic  honor,  to  which  all  persons  of 
illegitimate  birth  were  subject,  have  already  been  discussed  under 
the  law  of  persons  {supra,  pp.  106  et  seq.).  ]_Ji.t  the  same  time, 
medieval  legal  theory  required  of  the  father  that  he  should  show 
regard  for  and  contribute  to  the  support  of  his  illegitimate  chil- 
dren, notwithstanding  that  they  neither  belonged  to  his  household 
nor  were  subject  to  his  paternal  authorit>'\' 

(II)  The  Modem  Development.  —  That  the  status  of  illegiti- 
mates improved  only  very  slowly  in  modern  times  has  already 
been  remarked  in  the  Section  (§  14)  dealing  with  civic  honor. 
The  stigma  of  illegitimate  birth  was  strongly  emphasized  down 
into  the  1700  s  ;  it  is  only  since  then  that  the  institute  of  "  base- 
ness "  ("  Anriichigkeit  ")  has  disappeared.  On  the  other  hand 
there  has  persisted  down  into  the  present  law  the  rule  that  an 
illegitimate  child  is  not  legally  related  to  its  father ;  a  rule  to 
which  an  exception  has  been  made  by  the  Civil  Code  (§  1310,  3) 

'  Brunncr  in  same,  XVII,  26  et  seq. 

2  Liineburg  Reformation  of  1577,  V,  2. 

3  Ssp.,  Ill,  54,  §  3. 

673 


§  99]  FAMILY    LAW  [BoOK   IV 

solely  in  the  case  of  kinship  as  an  impediment  to  marriage.  In 
further  development  of  the  view  of  the  Germanic  law  already 
mentioned,  and  in  agreement  with  the  rules  of  the  Canon  law, 
there  has  been  given  to  the  child,  as  against  its  father,  a  claim 
for  maintenance ;  but  no  more.  Most  legal  systems  conceded 
this  right  not  only  when  the  father  had  voluntarily  admitted  his 
paternity  but  also  when  he  had  been  adjudged  the  father  in  an 
action  for  the  establishment  of  paternity.  This  action  was 
available  equally  to  the  child  and  to  the  mother.  On  the  other 
hand  the  Code  Civil  prohibited  any  investigation  of  paternity 
("  la  recherche  de  la  paternite  est  interdite  "),  so  that  under  it  a 
compulsory  contribution  of  the  father  for  the  maintenance  of  the 
child  was  impossible.^  The  Civil  Code  has  adopted  the  first 
named  (so-called  "  paternity  ")  principle ;  it  recognizes  an  action 
for  the  proof  of  paternity,  but  it  gives  this  to  the  child  alone 
(§  1708).  The  illegitimate  child,  therefore,  belonged  and  still 
belongs,  as  respects  legal  relations,  to  its  mother  only.  It  bears 
her  name  and  occupies  in  relation  to  her  family,  under  the  present 
Civil  Code  (§  1805),  as  formerly  under  the  common  law  and  the 
Saxon  law,  the  position  of  a  legitimate  child ;  /whereas  other  legal 
systems,  as  for  example  the  Prussian  "  Landrecht ",  regarded  such 

^  child  mereh^  as  related  to  its  mother  in  some  sort  of  kinship. 

LThe  mother  was  generally  conceded  a  right  to  care  personally 
for  the  child.  This  right  the  Civil  Code  also  accords  her, — but 
not  parental  power.  For  this  reason  it  was  always  necessary  to 
name  a  guardian  for  an  illegitimate  child,  the  mother's  father 
being  given  first  preference  for  this  position.  The  Civil  Code, 
following  the  Prussian  statute  of  guardianship,  declares  the  ma- 
ternal grandfather  to  be  the  statutory  guardian  of  the  chiklTjbut 
it  also  permits  the  appointment  of  the  mother  herself  as  guardian 
in  preference  to  her  father  (§  1778).  The  provisions  of  the  Swiss 
Civil  Code  (§§  302-327)  vary  in  many  respects  from  those  of  the 
German.  Among  other  things,  in  order  to  protect  the  mother 
and  chikl  to  the  utmost  possible  extent  as  against  one  who  begets 
children  out  of  wedlock,  it  gives  the  mother  an  action  to  establish 
paternity  (§  307)  ;  further,  it  adopts  the  so-called  "  recognition 
with  consequence  of  status  "  ("  Zusprechung  mit  Standesfolge  "), 
which  gives  to  the  illegitimate  child,  even  as  against  the  father, 
certain  rights  of  kinship,  namelv  those  of  "  bastard  kinship  " 
(§  325). 

1  The  rule  of  the  Code  Civil  has  recently  been  abolished  in  France 
also  by  a  statute  of  November  IG,  1912. 

674 


Chap.  XII]  CHILDHOOD  [§  99 

(III)  Legitimation^^  — r  The  favorable  position  of  illegitimate 
children  in  the  old  law  explains  the  fact  that  a  legitimation  of 
bastard  children  was  unknown,  speaking  generally,  to  the  West 
Germans.^  Among  the  Norwegians  there  was  known  an  adoption 
of  an  illegitimate  child  into  the  family  of  its  father  in  the  form  of 
"  Schuhsteigung  "  ("stepping  in  the  shoes").  It  was  only  the 
aggravation  of  their  situation  that  set  in  in  the  Middle  Ages  that 
made  necessary  the  removal  in  individual  cases  of  the  stigma  of 
their  birth.  For  this  reason,  the  Popes  adopted/In  the  1100  s  the 
"legitimatio  per  rescriptum  principis  "  of  the  Roman  law  as  "legi- 
timatio  per  rescriptum  papae  ",  and  this  example  was  soon  fol- 
lowed by  the  secular  princes.  Frederick  I  first  adopted  the 
institute  in  Germany ;  as  a  matter  of  fact  he  seems  to  have  trans- 
planted it  to  Germany  from  his  Sicilian  chancery.  Later  rulers 
exercised  it  in  part  personally ;  in  part  they  conveyed  the  right 
of  its  exercise  to  others ;  in  particular  it  was  regarded  as  a  right 
regularly  included  in  the  office  of  the  Palatinate  counts?/  After 
the  Reception  the  institute  attained  the  authority  of  common  law 
(without  the  adoption  of  the  restrictive  provisions  of  the  Justinian 
law),  although  no  uniform  regulation  of  the  institute  was  attained. 
/Legitimation  by  subsequent  marriage,  which  was  taken  over 
from  the  Roman  into  the  canon  law  by  Pope  Alexander  III,  was 
first  carried  to  Germany  toward  the  end  of  the  Middle  Ages.  Up 
to  that  time  there  was  there  recognized  only  the  adoption  of  chil- 
dren born  before  marriage;  which  was  realized  by  the  parents' 
taking  them  under  their  mantle  or  girdle  before  the  altar,  ^ 
"  mantle  "-children.  In  the  eyes  of  Germanic  law,  marriage 
without  this  formality  effected  no  change  in  the  legal  position  of 
children  born  before  wedlock.^  The  Roman-canonic  institute  en- 
countered at  first  in  Germany  an  exceedingly  hostile  reception ; 
which  was  only  altered  when  it  became,  with  the  general  Recep- 
tion, a  part  of  the  common  law.  The  grant  to  legitimized  children 
of  full  powers  under  the  law  of  family  and  inheritance  decidedly 
contradicted  the  popular  consciousness  of  law,  particularly  in 
North  Germanyr 

Most  of  the  modern  codes  regulated  the  institute  of  legitima- 
tion in  both  its  forms ;  not,  however,  the  Code  Civil  or  the  Baden 
Territorial  Law.     The  present  Civil  Code  recognizes  both  legiti- 

1  Koqler,  "Die  lepitimatio  per  rescriptum  von  Justinian  bis  zum  Tode 
Karls  IV"  (1904),  and  "Beitrage  zur  Geschichte  der  Rezeption  und  der 
Symbolik  der  legitimatio  per  subsequens  matrimonium",  in  Z*.  R.  G.. 
XXV  (1904),  94-171. 

2  Ssp.,  I.  36,  §  1,  supra,  p.  660. 

675 


§  90]  FAMILY    LAW  [BoOK   IV 

mation  by  subsequent  marriage  and  tliat  by  declaration  of  legiti- 
macy. But  in  the  case  of  the  latter,  although  it  permits  the 
child  to  acquire  the  rights  of  legitimate  issue  as  against  the  father, 
it  does  not  recognize  any  relations  whatever  of  kinship  between 
such  legitimized  child  and  the  other  children  or  kindred  of  the 
father.  A  child  legitimized  in  this  manner  acquires  a  right  of 
inheritance  oidy  from  the  father,  as  does  the  latter  from  the  child. 
On  the  other  hand,  the  status  of  a  legitimate  child  is  accorded 
without  reservation  and  without  qualification  to  one  legitimized 
by  a  subsequent  marriage.  The  Swiss  Civil  Code  has  abandoned 
this  double  treatment :  children  legitimized  by  judicial  decree, 
together  with  their  own  legitimate  descendants,  are  made  by  it 
the  equals  of  legitimate  issue  in  relation  to  both  their  father  and 
mother  (§  263). 


676 


Chap.  XIII] 


GUARDIANSHIP 


[§  100 


Chapter   XIII 


GUARDIANSHIP 


§  100.    General  Development  of  the 
Law  of  Guardianship. 
I.    The  Older  Law. 
II.   The  Modern  Develop- 
ment. 

III.  Cases  in  which  Guard- 

ianship Existed. 

IV.  Curatorship. 

§  101.    Guardianship  of  Minors. 
I.   Preconditions. 
II.    Appointment  and  Per- 
sonal    Qualifications 
of  the  Guardian. 
(1)  The  appointment. 


III. 


IV. 


(2)  Several  guardians. 

Supervisory 
guardianship. 

(3)  Personal       quaUfi- 

cations  of  guard- 
ians. 

(4)  Grounds  for  refusal 

of     a    guardian- 
ship. 
Legal   Position   of   the 
Guardian. 

(1)  The  older  law. 

(2)  The  modern  law. 
Termination. 


§  100.  General  Development  of  the  Law  of  Guardianship.^ 
(I)  The  Older  Law.  —  The  German  law  of  guardianship  had  its 
historical  and  conceptual  origin  in  the  Germanic  mundium. 
Guardianship  was,  in  its  essence,  mundium  over  those  free  per- 
sons lacking  in  self-mundium  ("  Selbmiindigkeit  ")  who  were  sub- 
ject neither  to  the  husband's  mundium  as  wives  nor  to  the  father's 
mundium  as  children.  There  were  subjected  to  it,  therefore, 
above  all,  fatherless  minors,  unmarried  adult  women,  and  lunatics. 
Like  the  mundium  of  the  family  law  it  was  purely  a  household 
power.  In  the  most  primitive  times  it  may  have  belonged  to  the 
head  of  the  "  greater  "  family,  but  in  that  period  back  to  which 
we  are  led  by  the  oldest  form  of  the  Germanic-German  law  of 
guardianship  the  subject  of  this  tutelary  power  was  the  sib :  the 
oldest  form  of  the  German  law  of  guardianship  was  a  collective 
guardianship  of  the  sib.  This  is  the  form  that  still  prevails  in 
unmodified  form  in  the  Anglo-Saxon  legal  sources;  and  simi- 
larly in  the  monuments  of  North  Germanic  law,  particularly  the 
Norwegian  and  Danish,  the  participation  of  the  sib  in  guardian- 
ship still  clearly  appears.  The  entire  body  of  adult  independent 
male  members  of  the  sib  held  over  such  dependent  members 

*  Kraut,  "Die  Vormundsehaft  nach  den  Grundsatzen  des  deutschen 
Rechts"  (3  vols.,  1835,  1847,  1859);  Rive,  "Geschichte  der  deutschen 
Vormundsehaft",  Vol.  I:  "Die  Vormundsehaft  im  Roehte  der  Ger- 
manen"  (1862),  Vol.  2  (in  2  parts)  :  "Die  Vormundsehaft  im  deutschen 
Recht  des  Mittelalters "  (1866,  1875). 

677 


§  100]  FAMILY    LAW  [BoOK   IV 

"  their  protecting,  and  if  the  interest  of  the  family  required  their 
powerful,  hand."  ^  In  this  connection  it  was  already  the  custom 
at  an  early  date  to  entrust  the  administration  of  the  guardianship 
to  the  nearest  male  blood-relative  of  the  ward  in  the  male  line, 
that  is  to  the  nearest  sword-kinsman  ("  Schwertmagen  ",  sword- 
friend).  From  this  custom  there  was  developed  in  most  legal 
systems  of  the  Frankish  Eni])ire  the  rule  that  such  sword-kins- 
man was  the  guardian  ("  Vornumd  "  ;  Okl  High  G.  "  foramundo  ", 
"gerhabe";  Old  G.  "  muntporo  ",  "  muntwalt  "  ;  Mid.-  G. 
"  momber  ")  of  the  ward  by  virtue  of  birth.  Thus  the  sib's  col- 
lective guardianship  was  (lisj)lacc(l  by  the  individual  guardianship 
of  the  nearest  sword-kinsman ;  in  place  of  the  guardian  chosen 
("gekoren  ")  by  the  sib  there  appeared  the  "born  "  ("  geborener  ") 
guardian,  and  the  sib's  collective  guardianship  shrank  to  a  su- 
pervisory guardianship.^  But  even  where  this  was  the  case 
traces  of  the  old  conditions  were  preserved,  in  some  cases  until 
far  into  the  Middle  Ages,  notably  in  the  legal  systems  derived  from 
the  Salic  Law  and  in  the  Frisian  law.  Such  were :  a  cooperation 
of  the  kindred  in  the  marriage  of  wards ;  the  power  of  the  sib, 
under  certain  preconditions,  —  for  example  when  the  "  born  " 
guardian  by  birth  proved  incapable,  —  to  choose  another  guardian  ; 
participation  in  the  administration  of  the  ward's  property,  for 
which  purpose  a  committee  was  frequently  created  ;  etc.  In  the 
main,  however,  the  question  who  was  entitled  in  any  particular 
case  to  assume  the  guardianship  was  henceforth  decided  accord- 
ing to  the  rules  governing  the  right  of  inheritance.  Like  this,  the 
right  of  guardianship  was  a  family  right  resting  upon  blood  rela- 
tionship and  determined  by  the  degree  thereof.  After  the  death 
of  the  house-lord  the  nearest  sword-kinsman  exercised  household- 
power  over  minor  sons  and  unmarried  daughters,  or  else  he  took 
such  dependent  kindred  into  his  own  houscOiold.  It  followed 
from  the  nature  of  guardianship  that  it  imi)lied  ])recisely  the  same 
powers  that  were  possessed  by  the  house-lord  over  his  wife  and 
children  ;  and  that,  like  every  other  mu!idium,  it  originally  em- 
phasized the  rights  of  the  mundium-holder  far  more  than  his 
duties ;  that  is,  it  did  not  so  much  burden  him  with  duties  as 
procure  him  benefits,  at  least  when  the  ward  possessed  ])roperty. 
The  guardian  was,  indeed,  bound  to  maintain  the  ward,  and  in 
case  of  necessity  care  for  his  or  her  education  ;  and  in  the  case  of 
daughters  to  provide  them  also  with  dowTy  ("  Ausstattung")  upon 

»  IK  Amira,  "Rocht"  (2d  ed.),  107. 

2  Brunner,  "Gcschifihte",  I  (2d  c;d.),  125. 

G78 


Chap.  XIII]  GUARDIANSHIP  [§  100 

their  marriage.  But  just  as  the  father  had  a  seisin  "in  mundium  " 
of  the  property  of  his  child,  so  the  guardian  had  such  in  the  property 
of  his  ward,  and  it  secured  him  the  entire  economic  returns  thereof. 
Indeed,  the  dominant  idea  in  the  institute  of  guardianship,  also, 
may  originally  have  been  not  the  interest  of  the  ward,  but 
that  of  the  guardian ;  a  point  that  has  been  emphasized  in  par- 
ticular by  Heusler.^  In  fact,  such  dependent  members  of  the  sib, 
if  they  had  been  left  to  themselves,  would  have  endangered  the 
interests  of  the  sib  or  of  their  own  next  kinsman.  The  sib,  and 
afterward  the  nearest  male  kinsman,  took  them  under  mundium 
in  order  that  the  sib  property  might  not  be  squandered  by 
them,  in  order  that  their  defective  litigant  capacity  might  not 
prejudice  them  in  a  way  that  must  also  cause  damage  to  the 
kindred,  in  order  that  the  claims  arising  from  rights  to  bots  might 
not  remain  unsatisfied ;   and  so  on. 

It  was  decisive  of  the  development  of  guardianship,  however, 
that  its  old  character  as  mundium  was  abandoned,  and  that  the 
care  of  the  ward  was  made  its  essential  element.  With  this  change 
its  legal  character  was  fundamentally  altered.  The  beginnings 
of  this  transformation  went  back  to  early  times.  The  sib's  over- 
sight over  the  administration  of  the  guardian  it  appointed,  —  an 
oversight  which  as  already  mentioned  continued  in  many  places, 
as  to  certain  powers  of  the  kindred,  even  after  the  disappearance 
of  collective  guardianship  proper, — restricted  the  guardian,  and 
protected  the  ward  against  his  arbitrary  will.  The  idea  involved 
in  this  first  received  effective  application  when  the  State  itself 
assumed  that  position  of  a  superior  guardian  which  was  once 
occupied  by  the  sib.  This  task  it  earliest  assumed  among  the 
Lombards,  where  the  judge  was  appealed  to  for  official  interven- 
tion in  lawsuits,  in  alienations  of  property,  and  in  partitions  of  the 
heritage  of  minor  wards.  In  the  Frankish  Empire  the  king  pro- 
claimed the  care  of  widows  and  orphans  to  be,  at  least  theo- 
retically, a  duty  of  the  State.  In  the  Frankish  capitularies  it  was 
repeatedly  impressed  upon  the  judges  to  dispose  first  of  all  law- 
suits involving  such  weak  persons ;  the  king,  as  their  protector, 
claimed  the  right  to  assume  the  mundium  over  them  himself,  in 
default  of  kindred.  For  a  time,  however,  things  went  no  further 
in  Germany  than  "these  theoretical  rudiments.""  It  was  only 
in  the  Middle  Ages  that  such  oversight  by  the  state  was  developed  ; 

'  Heusler,  "Institutionen",  II,  480  et  seq. 

2  Brunner,  "Grundziige"  (5th  ed.),  231 ;  "Gcschichte",  I  (2d  ed.),  331 
et  seq. 

G79 


§  100]  FAMILY    LAW  [BooK    .V 

first  of  all  in  the  cities,  where  the  magistrates  were  in  many  places 
regarded  as  the  guardians  of  orphans,  —  as  the  "  protecteurs  et 
supremes  tuteurs  des  ori)helins  ",  as  they  were  called  for  example 
in  Bruges.  Consequently,  the  first  modern  ordinances  of  guardian- 
ship were  issued  in  the  cities.  Under  these,  special  official  boards 
were  created  at  an  early  period  for  the  control  of  guardians ;  for 
example,  in  Nuremberg  as  early  as  1399  two  salaried  city  officials, 
who  entered  all  matters  relating  to  guardians  in  a  special  book, 
and  who  were  to  apply  in  difficult  questions  to  the  town  coimcil, 
—  but  in  other  cases  to  keep  silence!  In  the  1500s  improve- 
ments were  introduced  upon  the  basis  of  a  report  by  a  deputation 
that  had  been  sent  to  Venice  to  study  the  practices  there  observed. 
Similar  boards  and  deputations  subordinate  to  the  town  council 
were  created  in  Basel,  Leipzig,  Vienna,  Gorlitz,  and  elsewhere. 

This  encroachment  of  public  authority  upon  an  institution  that 
was  originally  purely  one  of  the  family  law  could  not  have  been 
possible  if  the  idea  that  the  exercise  of  guardianship  was  q,  family 
right,  resting  upon  blood  relationship  and  therefore  ordinarily 
irrevocable,  had  not  lost  vitality,  owing  to  the  increasing  loosen- 
ing and  dissolution,  particularly  in  the  cities,  of  the  old  and 
formerly  firmly  solidary  family  groups.  Precisely  as  inheritance 
based  upon  the  will  of  the  testator  was  introduced  to  supplement 
the  statutory  herital  rights  of  kinsmen,  in  consequence  of  the 
recognition  of  dispositive  freedom  mortis  causa  (infra,  §§  110  et 
seq.),  so  from  the  1200  s  onward  it  became  possible  and  usual  for 
the  father,  instead  of  entrusting  his  children  to  the  mundium  of 
the  sword-kinsman  next  thereto  entitled,  the  "  born  "  guardian, 
to  name  in  his  last  testament  a  guardian  of  his  free  choice.  And 
when  the  possibility  of  a  "  chosen  "  guardian  had  once  been  recog- 
nized, the  choice  and  appointment  of  a  guardian  could  also,  in 
case  of  necessity,  be  left  to  the  court.  Thus,  in  addition  to  the 
guardian  appointed  by  virtue  of  his  kinship,  —  which  the  Sach- 
senspiegel  still  recognizes  as  everywhere  the  ordinary  rule,' — and 
the  guardian  chosen  by  the  father,  there  appeared  the  guardian 
appointed  by  public  authority;  and  soon  judicial  confirmation 
was  also  required  for  the  guardian  nominated  by  the  father. 

That,  of  course,  altered  the  legal  ])()siti()n  of  the  guardian.  lie 
was  no  longer  the  holder  of  the  nuuidiuin,  who  was  entitled  to  en- 
joy without  an  accounting  the  profits  of  the  ward's  estate  of  which 
he  held  the  seisin.  He  became  a  representative  of  th(>  ward  under 
the  oversight  of  public  authorities,  responsible  to  public  officials 

>  Ssp.,  T.  23,  §  1. 
G80 


Chap.  XIII]  GUARDIANSHIP  [§  100 

for  proper  administration.  A  usufruct  in  the  ward's  estate  no 
longer  existed  in  his  favor,  —  and  naturally  he  was  therefore  no 
longer  under  the  duty  of  maintaining  the  ward  from  his  own 
property.  The  assumption  of  the  guardianship  was  no  longer  a 
right,  but  a  duty ;  no  citizen  could  decline  it,  he  could  only  claim 
in  return  for  the  burden  of  his  stewardship  a  reward  ("  Vogtslohn  "). 

(II)  The  Modem  Development.  —  Although  these  new  views 
concerning  guardianship  took  root  only  with  difficulty  in  many 
regions,  especially  where  the  old  solidarity  of  the  family  was 
longest  preserved,  they  nevertheless  everywhere  became  estab- 
lished in  the  second  half  of  the  Middle  Ages,  thus  giving  to  the 
institute  of  guardianship  in  Germany  a  form  essentially  uniform. 
This  suffered  no  principal  change  as  a  result  of  the  reception  of 
the  Roman  law.  The  rules  of  the  latter,  although  partly  diver- 
gent, exercised  only  a  slight  influence.  Although  its  distinction 
between  the  tutelage  of  "  impuberes  "  ("  Unmiindige  ")  and  the 
curatorship  of  "  minores  "  ("  Minderjahrige  ")  was  in  some  places 
adopted  in  connection  with  the  two  periods  of  infancy  of  the 
Saxon  law  (supra,  p.  57),  there  was  here  involved  nothing  more 
than  a  superficial  adaptation,  which  was  later  again  done  away 
with ;  in  the  main,  guardianship  of  all  minors  ("  Minderjahrige  ") 
was  treated  as  a  uniform  institute. 

Further,  guardianship  preserved  down  into  recent  times  the 
characteristics  of  public  office  which  it  acquired  during  the  second 
half  of  the  Middle  Ages  ;  but  with  this  difference,  that  this  official 
character  was  enforced  with  increasing  strictness,  —  alike  as  re- 
spects the  mode  in  which  the  guardianship  was  established,  the 
obligation  to  assume  it,  its  far-reaching  control  by  public  authori- 
ties, and  their  cooperation  in  all  important  transactions  as  well  as 
in  the  definition  of  the  guardian's  rights  and  duties.  The  institute 
of  guardianship  was  one  of  the  few  matters  of  private  law  with 
which  the  legislation  of  the  old  Empire  concerned  itself ;  but  be- 
cause of  the  hesitancy  felt  in  interfering  with  the  private  law,  its 
regulation  was  left  to  the  imperial  police  ordinances,  and  was  es- 
tablished by  these  only  in  broad  outline  ("Reichspolizeiordnun- 
gen  "  of  1548  and  1577),—  so  that  in  this  field,  also,  of  the  law  the 
most  important  changes  were  effected  by  State  legislation.  It  was 
precisely  through  this  that  the  authority  of  government  was  ever 
more  extended.  Whereas  under  the  older  codes  the  guardian 
so  bound  actually  to  conduct  the  administration,  and  required 
the  assent  of  the  Supervisory  Guardians'  Board  ("  Obervor- 
mundschaftsbehorde  "),  —  or  of  the  town  council  in  cities,  and  in 

081 


§  100]  FAMILY    LAW  [BoOK   IV 

modern  States  generally  that  of  a  court,  —  only  in  more  important 
matters,  the  administration  of  the  office  eventually  passed,  under 
many  legal  systems,  to  the  public  authorities  themselves,  the 
guardian  becoming  a  mere  agent  of  the  Guardians'  Board,  and 
so  bound  simply  to  execute  what  the  latter  ordered.  The 
Guardians'  Board  acquired  most  nearly  unlimited  power  in  Prussia 
and  Austria,  reflecting  the  omnipotence  of  an  absolute  police- 
state.  The  Prussian ' '  Landrecht "  therefore  characterized  the  ward, 
logically  enough,  as  "  committed  to  the  care  of  the  State  ",  and 
the  guardian  as  the  "procurator  of  the  State",  who  was  appointed 
to  exercise  in  its  behalf  the  "  oversight  and  care  "  incumbent 
upon  it. 

But  in  the  course  of  the  1800  s,  a  reaction  took  place  against 
this  exaggeration  of  public  ("  Ober- ")  guardianship.  The 
guardian  has  again  been  entrusted,  as  formerly,  with  the  inde- 
pendent conduct  of  his  office,  though  under  the  oversight  and 
direction  of  the  Guardians'  Board,  whose  assent  he  requires  in 
certain  important  matters.  This  was  the  theory,  notably,  of  the 
Prussian  Ordinance  of  Wardship  of  July  5,  1875,  the  most  im- 
portant of  modern  statutes  regulating  guardianship,  whose  prin- 
ciples have  passed  with  slight  changes  into  the  present  Civil  Code. 

The  idea  of  oversight  over  the  guardian  was  embodied  in  the 
French  law  in  a  peculiar  institute  distinct  from  the  German  in- 
stitute of  public  guardianship.  In  it,  the  old  powers  of  the  sib 
as  a  guardian  were  continued  in  the  institute  of  the  family-council. 
The  Code  Civil,  following  the  older  law,  introduced  this  as  an 
obligatory  legal  institute,  assigning  to  it  those  duties  which  fell 
in  Germany  to  the  Court  of  Wards  ("  Vormundschaftsgericht"). 
Consisting  of  a  mediator  ("  peace-judge  ")  and  six  of  the  ward's 
blood  or  marriage  relatives,  it  was  empowered  to  name  the  guardian 
in  default  of  provision  by  the  parents,  control  the  administration 
of  the  estate,  and  give  or  refuse  assent  to  important  acts.  The 
Prussian  Ordinance  of  Wardship  adopted  the  family-council  of 
the  French  law,  but  it  permitted  the  organization  of  this  only 
when  the  father  or  the  mother  of  the  ward  so  ordered,  or  when 
the  kindred  or  the  guardian  so  r(>quested.  Under  that  ordinance 
it  consisted  of  a  judge  ("  guardiansliip-judge  ")  and  at  most 
five  other  male  persons ;  it  possessed  all  the  rights  and  duties  of 
the  Court  of  Wards.  The  Prussian  statute  prescribed  in  addition 
that  in  important  matters,  either  at  the  instance  of  the  parties  or  of 
his  own  motion,  the  judge  should  hear  the  opinions  of  three  near 
kinsmen  of  the  ward.     These  provisions  of  the  Prussian  law  have 

682 


Chap.  XIII]  GUARDIANSHIP  [§  100 

been  adopted  with  slight  changes  in  the  present  Civil  Code.  The 
Swiss  Civil  Code  also  permits  the  transfer  to  a  family-council  of 
the  authority  and  duties,  and  the  responsibility,  of  a  Guardians' 
Board. 

(Ill)  Cases  in  which  Guardianship  Existed.  —  From  the  earliest 
times  guardianship  over  infants,  i.e.  guardianship  on  account  of 
age,  has  been  the  most  important  part  of  the  law  of  guardianship. 
The  principles  of  this  were  mainly  developed  within  that  institute. 
The  further  discussion  of  this  section  may  be  restricted  to  it. 
Though  guardianship  of  adult  unmarried  women,  —  sex-guardian- 
ship, —  played  an  important  role  in  earlier  times  and  in  part 
down  almost  to  the  present  day,  and  has  disappeared  from  the 
law  only  in  its  latest  form,  this  has  already  been  discussed 
under  the  law  of  persons  (supra,  pp.  61  et  seq.). 

Other  forms  of  guardianship  over  adults  had  and  have  less  im- 
portance. It  has  also  already  been  mentioned  that  under  earlier 
legal  systems  persons  physically  infirm  could  be  placed  under 
guardianship  (supra,  p.  71) ;  and  the  Civil  Code  (§  1910)  has  per- 
mitted the  institution  of  a  curatorship  for  them,  equally  with  the 
deaf,  the  blind,  and  the  dumb,  who  are  incapable  of  attending  to 
their  own  affairs.  In  the  same  way  (as  has  also  been  remarked 
supra,  p.  71)  persons  of  unsound  mind  were  subjected  to  guardian- 
ship under  the  older  Germanic  law ;  never,  however,  under  modern 
law  unless  a  formal  interdiction  has  been  decreed.  Guardianship 
of  persons  of  unsound  mind  has  likewise  been  regulated  by  the 
Civil  Code  in  essential  agreement  with  the  pre-existing  law.  In 
general  this  is  controlled  by  the  principles  of  age-guardianship  ;  a 
few  deviations,  —  for  example,  the  rule  that  it  can  be  terminated 
only  as  the  result  of  an  official  abrogation  of  the  interdiction,  — 
are  evidently  necessary. 

Further  (as  already  mentioned  above,  pp.  72  et  seq.),  after  the 
Reception  and  as  a  development  of  the  Roman  "  cura  absentis  ", 
the  care  of  the  property  of  a  missing  person  was  brought  within 
the  concept  of  guardianship,  being  designated  a  "  cura  anomala." 
This  existed  from  the  1500  s  to  the  1700  s  as  an  institute  of  the 
common  law,  but  was  thereafter  abandoned  in  consequence  of  a 
closer  adherence  to  the  Roman  law.  The  Civil  Code  has  abolished 
it,  introducing  in  its  place  a  curatorship  of  missing  persons. 

Finally,  as  respects  the  guardianship  of  prodigals  reference  may 
likewise  be  made  to  earlier  remarks  (pp.  72  et  seq.).  The  Civil  Code 
has  added  to  this  a  guardianship  of  dipsomaniacs.  The  Swiss 
Civil  Code,  going  still  further,  has  provided  that  a  wicked  course 

683 


§  100]  FAMILY    LAW  [BoOK   IV 

of  life  may  be  a  ground  for  guardinnsliip ;  and  also  that  every 
adult  person  shall  be  under  guardianship  who  has  been  condemned 
for  one  year  or  longer  to  imprisomnent. 

(IV)  Curatorship.  —  A  so-called  "  curatorship  "  ("  Pfleg- 
schaft  ")  was  introduced  for  certain  cases  in  the  modern  law,  to 
some  extent  in  imitation  of  the  Roman  law.  This  was  distin- 
guished from  guardianship  ("  Vormundschaft  ")  by  the  fact  that 
the  curator  did  not,  like  the  guardian,  take  the  place  of  a  father 
or  mother,  but  was  appointed  alongside  of  the  subject  of  paternal 
or  parental  authority  or  of  a  guardian  in  order  to  care  for  partic- 
ular affairs  of  a  child  or  of  a  ward.  Such  curatorships,  however, 
were  also  recognized  for  unborn  persons  ("  curator  ventris  ") ;  for 
possible  future  issue  not  yet  even  conceived,  as  e.g.  possible  future 
heirs  of  fideicommissa  ;  for  unspecified  heirs  ("  curator  heraditatis 
iacentis  ") ;  for  missing  persons;  for  infirm  persons;  etc.  The 
present  Civil  Code,  following  the  example  of  the  Prussian  law,  has 
retained  the  curatorship  as  an  independent  institute  along  with 
guardianship.  Under  it  a  curator  is  nominated  for  any  person 
subject  to  parental  power  or  to  guardianship  whenever  the  parents 
or  the  guardians  are  actually  prevented  from  or  legally  incapable 
of  attending  to  any  duties  of  their  office ;  also,  for  a  person  who 
is  physically  or  mentally  infirm,  and  consequently  unable  to 
attend  to  his  own  affairs ;  for  a  missing  person  (the  Prussian  law 
treated  the  care  of  deaf-mutes  and  missing  persons  as  guardian- 
ship, and  not  curatorship)  ;  for  a  child  conceived  but  not  yet 
born ;  for  an  uncertain  and  unknown  person  in  interest ;  and 
for  property  collected  by  public  subscription  for  a  temporary 
purpose  (§§  1909-1910).  Curatorship  is  regulated,  in  general, 
by  the  rules  of  guardianship.  The  curatorship  of  the  German  law 
corresponds  substantially  to  the  assessorship  ("  Beistandschaft  ", 
"  curatelle  ")  of  the  Swiss  Civil  Code. 

§101.  Guardianship  of  Minors.^  (I)  Preconditions.  —  Incapac- 
ity for  self-mundium  ("  Unmiindigkeit  ")  and  default  of  paternal 
authority  necessitate  the  establishment  of  a  guardianship  on 
account  of  age. 

The  most  important  facts  respecting  the  limits  of  infancy,  — 
of  "  impuberes  "  ("  Unmiindigc  ")  and  "  minores  "  ("  Minder- 
jahrige  "),  which  coincided  in  the  view  of  the  old  Germanic  law, 
—  have  already  been  stated  {supra,  pp.  54  et  seq).  Default  of  pa- 
ternal authority  was  and  is,  of  course,  ordinarily  due  to  the  father's 
death  ;  but  even  in  his  lifetime  a  guardianship  may  become  neces- 
'  See  Fchr,  op.  cit.  (657  supra),  107  cl  scq. 

684 


Chap.  XIII]  GUARDIANSHIP  [§  101 

sary.  This  was  the  case  under  medieval  law  when  the  father  was 
actually  incapable  of  caring  for  the  child,  —  for  example,  because 
he  entered  a  cloister  and  thereby  became  dead  to  the  world  {supra, 
pp.  48  etseq.) ;  and  also,  according  to  some  legal  systems,  when  the 
mother  had  died,  although  sometimes  only  when  the  widower 
contracted  a  second  marriage.  In  the  modern  law  all  such  rules 
have  been  done  away  with.  A  case  requiring  guardianship  ordi- 
narily arises  during  the  lifetime  of  the  father  only  when  paternal 
authority  is  in  abeyance  for  legal  reasons,  or  has  been  abolished, 
or  when  the  child  has  been  released  from  parental  authority  with- 
out having  attained  the  rights  of  majority.  On  the  other  hand, 
in  the  earliest  legal  systems,  wherever  an  exceptional  parental 
power  was  accorded  to  the  mother  the  father's  death  did  not  neces- 
sitate a  guardianship.  Inasmuch  as  the  Civil  Code,  as  already 
mentioned  {supra,  pp .  664  et  seq. ) ,  has  recognized  in  theory  a  parental 
power  in  the  mother,  a  case  requiring  the  appointment  of  a  guard- 
ian exists  only  when  both  parents  have  died  or  when  they  have 
lost  their  parental  power,  which  in  the  case  of  a  surviving  mother 
occurs  as  a  consequence  of  her  remarriage.  Cases  are  rare  in 
which  guardianship  is  established  during  the  continuance  of 
parental  power  because  the  parent  does  not  have  a  right  to  repre- 
sent the  child  in  personal  and  property  relations. 

(II)  Appointment  and  Personal  Qualifications  of  the  Guardian. 
(1)  The  appointment.  —  As  already  mentioned,  after  collective 
guardianship  by  the  sib  had  become  less  prominent  in  the  older 
law,  the  guardianship  passed  without  legal  formalities  to  the 
nearest  sword-kinsman,  as  the  "  born  "  guardian  of  the  ward. 
If  he  was  ineligible  ("  untauglich  ")  to  assume  it,  the  next  kins- 
man became  eligible.  Although  other  kindred,  particularly  the 
maternal  sib,  were  later  made  eligible,  and  although  many  legal 
systems  (as  for  example  the  West  Gothic,  Burgundian,  and  Ba- 
varian) even  conceded  the  administration  of  wardship  to  the 
mother  or  to  other  female  kindred  of  the  ward,  this  striking  fact 
is  perhaps  explainable,  where  no  Roman  influences  can  be  assumed, 
as  an  after-effect  of  the  old  collective  guardianship :  the  sib,  to 
whom  the  power  was  even  elsewhere  reserved  of  naming  the 
guardian,  chose  such  women  because  it  expected  of  them  the  most 
careful  attention  to  the  interests  of  the  ward.^     But  for  the  most 


'  Ernst  Mayer  relies  upon  this  and  other  phenomena  to  develop  the 
theory  that  the  Germanic  law  of  priiardianship  was  based  upon  a  system  of 
relationship  that  rested  on  conditions  of  mother-rig:ht :  "Der  germanische 
Uradel",  in  Z\  R.  G.,  XXXII  (1911),  41-228,  particularly  174  et  seq. 

G85 


§  101]  FAMILY    LAW  [BoOK    IV 

part  tlie  sword-kinsman  of  the  ward  remained  the  usual  guardian/ 
and  though  later  legal  systems  left  to  the  widow  the  personal 
care  of  the  children  this  was  no  more  guardianship  than  it  was 
a  form  of  parental  authority. 

From  the  1200  s  onward,  however,  despite  much  resistance,  and 
owing  somewhat  to  the  influence  of  the  Roman  law,  the  above- 
mentioned  practice  si)read  of  appointing  the  guardian  by  testa- 
mentary disposition  or  contract  subject  to  judicial  confirmation. 
This  naturally  led  to  appointment  by  the  public  authorities, 
usually  by  a  judge,  as  another  usual  maimer  in  which  the  relation 
was  legally  established.  Such  public  authorities  were  expected  to 
interfere,  above  all,  in  cases  where  kinsmen  were  lacking  and  an 
appointment  by  the  father  failed,  in  order  that  no  one  might  be 
without  a  guardian.  The  judge,  so  soon  as  he  learned  of  such  a 
case  of  necessity,  was  bound  to  appoint  a  guardian  of  his  own 
motion.  In  some  legal  systems  a  further  step  was  taken  as  early 
as  in  the  Middle  Ages ;  namely  that  even  a  guardian  named  by 
the  father  and  a  statutory  guardian  were  required,  before  entering 
upon  their  duties,  to  apply  to  the  public  authorities  in  order  that 
these  might  instate  them  in  their  office.  With  this  change  the 
statutory  right  was  transformed  into  a  mere  claim  to  special  con- 
sideration by  the  judge  in  making  an  appointment.  The  imperial 
Police  Ordinances  of  1548  and  1577  provided  in  quite  general 
terms  that  every  guardian  should  receive  his  administrative 
powers  by  virtue  of  a  goverimiental  decree,  and  shoukl  take  oath 
at  the  same  time  to  perform  his  duties  faithfully  and  conscien- 
tiously. The  complement  to  this  right  of  the  court  to  nominate 
was  its  power  to  remove  an  unfaithful  guardian  (a  "  balemund  "). 
This  rule  has  also  been  retained  in  all  modem  statutes  regulating 
guardianship.  In  every  case  of  guardianship  that  arose  an  official 
appointment  of  the  guardian  was  held  necessary.  The  judge,  — 
whom  kinsmen,  registrars  of  personal  status,  priests,  and  com- 
munal officials  were  bound  to  aid  in  this  function,  —  was  required 
to  inquire  whether  a  fit  guardian  had  been  appointed  by  due  and 
lawful  act  of  the  parents,  or  whether  in  default  of  such  disposition 
there  was  available  a  proper  kinsman  lawfully  entitled  to  the 
guardianship.  In  case  there  was,  the  judge  was  legally  obligated 
to  appoint  such  person  as  guardian  ("  confirmatio  iuris  Ger- 
manici  ") ;  otherwise  he  was  bound  to  find  a  suitable  person  of 
his  own  motion,  and  to  entrust  the  guardianship  to  such  person. 
These  three  situations,  which  were  already  defincnl  in  the  medieval 
1  Brunner,  "Geschichte",  I  (2d  ed.),  124  et  seq. 
G86 


Chap.  XIII]  GUARDIANSHIP  [§  101 

law,  corresponded  superficially  to  the  three  ways  in  which  guard- 
ians were  appointed  under  the  Roman  law ;  and  they  were  there- 
fore designated  in  the  common  law  as  "  tutelae  testamentariae  ", 
"  legitimae  "  and  "  dativae  " ;  inexactly,  to  be  sure,  inasmuch  as 
a  judicial  appointment  was  required  in  all  cases,  so  that  all  guard- 
ians were  in  this  sense  "  tutores  dativi."  The  statutory  qualifi- 
cations for  appointment  based  upon  kinship  came  in  time  to  be 
of  very  little  consequence. 

Under  the  Civil  Code  the  guardianship  must  be  offered  (aside 
from  persons  appointed  by  the  parents)  to  the  paternal  and  ma- 
ternal grandfathers  of  the  ward ;  an  unwedded  mother,  though 
she  may  be  named  the  guardian  of  her  child,  has  no  legal  claim 
to  such  appointment.  In  other  respects  the  judge  is  free  in  his 
choice;  he  should,  however,  hear  the  Orphans'  Court  of  the 
commune,  consult  in  the  first  place  the  blood  and  marriage  rela- 
tions of  the  ward,  and  show  regard  for  its  religious  faith.  Every 
guardian  is  appointed  by  the  Court  of  Wards  subject  to  an 
obligation  of  faithful  and  conscientious  conduct  of  his  office.  This 
obligation  is  imposed  by  a  hand-clasp,  instead  of  by  oath. 

Totally  different  is  its  regulation  in  the  Swiss  Civil  Code. 
While  this  recognizes  no  legal  claims  at  all  to  the  guardianship, 
it  does  provide  in  quite  general  terms  that  unless  there  are 
weighty  reasons  to  the  contrary  the  Guardians'  Board  shall, 
in  choosing,  give  preference  to  a  proper  near  kinsman  or  to  the 
husband  of  the  ward  ;  and  also  shall  respect  a  designation  made 
by  the  ward,  or  by  his  father  or  mother  (§§  380-381).  If  there  is 
available  for  guardian  neither  a  suitable  kinsman  nor  a  trust- 
worthy designated  guardian  by  such  persons,  then  an  official 
guardianship  must  be  created. 

(2)  Several  guardians.  Supervisory  guardianship.  —  As  con- 
trasted with  the  ordinary  case  in  which  one  guardian  is  appointed, 
many  earlier  legal  systems  (for  example,  the  law  of  Liibeck,  Bre- 
men, Hamburg,  Frankfort,  Vienna,  and  also  the  Frisian  law) 
sought  to  realize  greater  security  by  the  appointment  of  several 
guardians ;  in  which  case,  in  addition  to  the  paternal  kindred, 
either  the  maternal  kindred  were  given  recognition  or  guardians 
were  appointed  by  pubHc  authority  along  with  the  guardian  en- 
titled under  statute.  This  practice  was  retained  in  many  modern 
legal  systems  also,  particularly  in  the  wardship  ordinances  of  the 
Hansa  cities.  On  the  other  hand,  under  the  Saxon  Code  and  the 
Prussian  Wardsliij)  Ordinance  the  court  ordinarily  appointed  only 
one  guardian,  whether  for  a  single  ward  or  for  several  brothers 

G87 


§  101]  FAMILY    LAW  [BoOK   IV 

and  sisters.  The  present  Civil  Code  has  adopted  the  same  rule, 
although  permitting  the  appointment  of  several  guardians  in  cer- 
tain cases. 

Special  guardianships  existed  in  the  Middle  Ages  to  care  for 
special  legal  relationships ;  notably,  "  guardianships  "  of  lands 
located  abroad  and  of  fiefs.  These  are  found  also  in  the  modern 
period,  and  even  to-day,  particularly  in  the  dynastic  statutes  of 
the  greater  nobility  where  they  are  usual  when  a  minor  member 
of  a  family  has  possessions  in  different  (and  to-day,  consequently^ 
foreign)  States. 

Inasmuch  as  the  institute  of  public  ("  Ober-  ")  guardianship 
was  less  developed  in  the  French  than  in  the  German  law,  the 
Code  Civil,  —  following  the  example  of  the  Roman  law  in  recog- 
nizing a  division  of  the  guardian's  obligations  between  a  "  tutor 
gerens  "  and  a  supervisory  "  tutor  honorarius  ",  —  provided  for 
the  appointment,  in  addition  to  the  ordinary  guardian,  of  a 
supervisory  guardian  ("  tuteur  subroge  ",  "  Gegenvormund  ")  to 
oversee  the  former,  cooperate  in  certain  actions,  and,  particularly, 
intervene  whenever  the  interests  of  the  ward  conflicted  with  those 
of  the  principal  guardian.  The  Prussian  Wardship  Ordinance  and 
the  present  Civil  Code  (but  not  the  Swiss  Civil  Code)  have  taken 
over  from  the  French  law  this  institute  of  supervisory  guardian- 
ship. Under  them,  however,  the  appointment  of  a  supervisory 
guardian  is  obligatory  only  when  the  guardianship  involves  the 
administration  of  an  estate  of  some  size,  and  provided  the 
guardianship  is  not  entrusted  to  several  guardians.  In  other 
cases  the  appointment  of  a  supervisory  guardian  rests  in  the 
court's  discretion.  The  parents  may  forbid  such  appointment 
in  connection  with  a  guardian  named  by  them. 

(3)  Personal  qualifications  of  guardians.  —  Although  it  was 
originally  left  to  the  free  judgment  of  the  sib,  and  later  to  the  dis- 
cretion of  a  judge,  to  decide  whether  a  person  entitled  by  virtue 
of  blood  relationship  to  the  office  of  guardian  possessed  the  other 
requisite  qualities,  nevertheless  certain  general  principles  always 
prevailed,  and  are  found  expressly  stated  in  the  sources.  No 
women,  no  aliens,  no  priests,  no  outlaws,  no  persons  of  weak  mind, 
and  no  enemies  of  the  ward's  father,  might  be  appointed  guardian. 
Further,  equality  of  birth  and  of  course  self-mundium  were  re- 
quired of  a  guardian.  After  the  Reception  the  incapacity  of 
women  was  generally  retained.  A  sole  exception,  which  existed 
in  many  medieval  legal  systems,  was  made  in  favor  of  the  mother 
and  grandmother.     The  capacity  of  women  as  guardians   was 

688 


Chap.  XIII]  GUARDIANSHIP  [§  101 

first  unqualifiedly  recognized  in  the  present  Civil  Code,  but  even 
now  a  married  woman  can  be  appointed  guardian  only  with  the 
consent  of  her  husband.  Further,  there  have  been  retained  or 
newly  introduced  the  incapacity  of  persons  incapable  of  juristic 
acts  and  persons  themselves  under  the  mundium  of  others,  of 
bankrupts  during  bankruptcy,  of  persons  who  have  been  deprived 
of  rights  of  civic  honor  (save  in  cases  involving  the  guardianship 
of  descendants),  and  finally  of  persons  barred  from  appointment 
by  the  testamentary  disposition  of  the  ward's  father  or  mother. 
The  ineligibility  of  priests  and  civil  officials,  which  depends  upon 
the  rules  of  the  Canon  law  and  the  administrative  law  of  the  par- 
ticular States,  still  exists  to  the  extent  that  they  can  be  appointed 
only  after  the  grant  of  a  permission,  if  such  be  prescribed  b}^  the 
State  law.  The  incapacity  of  aliens  is  no  longer  important  as 
respects  Germans  since  the  establishment  of  a  general  German 
citizenship  by  Article  2  of  the  Imperial  Constitution.  Difference 
of  religious  faith  is  no  longer  ground  of  incapacity ;  but,  as  already 
mentioned  (supra,  p.  687),  according  to  the  express  injunction  of  the 
Civil  Code  regard  should  be  sho^^^^  to  the  religious  faith  of  the  ward. 
(4)  Grounds  for  refusal  of  a  guardianship.  —  When  guardianship 
had  ceased  to  be  exclusively  a  right  of  blood  relatives  and  its 
official  character  had  become  predominant,  its  acceptance  came 
to  be  regarded  as  a  general  duty  of  citizens ;  and  only  very  defi- 
nite reasons  have  since  then  been  held  justification  for  a  declina- 
tion of  the  office.  In  the  medieval  sources,  however,  any  uniform 
rule  is  still  lacking.  After  the  Reception  many  legal  systems 
adopted  the  excuses  recognized  by  the  Roman  law,  —  so,  for 
example  the  Prussian  Territorial  Law  and  the  Prussian  Wardship 
Ordinance.  Others,  on  the  other  hand,  left  the  decision  of  any 
particular  case  to  the  judge's  free  discretion.  Generally  speaking, 
advanced  age  (formerly,  until  seventy  years ;  in  modern  legal 
systems  and  under  the  Civil  Code  sixty  years),  a  large  number  of 
minor  children,  occupancy  of  public  office,  and  military  service 
were  recognized  as  sufficient  reasons  for  a  declination.  A  right  of 
declination  was  also  given  to  one  of  whom  security  was  required. 
The  same  right  is  enjoyed  under  the  Civil  Code  by  a  person  who 
is  already  charged  with  two  guardianships  or  curatorships,  and 
by  one  to  whom  the  proper  discharge  of  the  office  would  either  be 
impossible  or  an  especial  burden  because  of  sickness,  infirmity,  or 
distance  from  his  residence ;  also  by  anyone  who  is  offered  the 
office  of  a  CO-  ("  Mit-  ")  guardian,  and  by  every  woman  (§  1786). 
The  provisions  of  the  Swiss  Civil  Code  (§  383)  are  similar. 

689 


§  1011  FAMILY    LAW  [BoOK   IV 

(III)  Legal  Position  of  the  Guardian.  (1)  The  older  law.  —  By 
virtue  of  the  inundiuin  he  possessed  under  the  family  law,  the 
"  born  "  guardian  of  the  older  law  had  power  over  the  ward's 
person,  and  a  seisin  "  in  mundium  "  of  the  ward's  property.  His 
legal  relation  to  the  ward  corresponded  exactly  to  that  of  a  father 
to  his  son.  In  personal  relations  he  had  the  powers  that  resulted 
from  house-lord sliip ;  and  therefore,  originally,  a  power  of  punish- 
ment, although  this  became  restricted  so  early  as  the  Frankish 
period  to  a  brother  acting  as  guardian.  In  relations  under  the 
property  law  the  guardian  was  not,  as  might  be  supposed,  a  mere 
administrator  of  the  ward's  estate,  but  took  "  the  ward's  property 
into  his  power  by  virtue  of  his  legal  claim  to  the  seisin  thereof 
that  resulted  from  his  appointment  to  the  guardianship."  ^  For 
this  reason  he  brought  an  action  in  his  own  name,  and  not  in  the 
name  of  the  ward,  against  any  third  person  who  refused  to  deliver 
objects  belonging  to  the  estate.^  Of  course  his  seisin  of  the  estate 
also  gave  the  guardian  its  profits ;  but  he  could  not  dispose  of  the 
substance,  for  here  again  the  rule  prevailed  that  the  property  of  a 
person  subjected  to  the  mundium  of  another  who  assumed  control 
thereover,  must  remain  unimpaired:  "the  ward's  estate  shall 
neither  grow  nor  lessen."  ^  Upon  the  termination  of  his  adminis- 
tration the  guardian,  when  he  delivered  the  property  to  the  ward 
upon  the  latter's  attainment  of  majority,  was  bound  to  inform 
him  of  its  condition ;  but  so  long  as  he  acted  as  guardian  he  was 
neither  bound  to  make  an  accounting  nor  to  give  security.  The 
ward's  chattels  he  could  freely  dispose  of;  but  his  dispositions 
of  lands  were  subject  to  a  right  of  revocation  by  the  ward  on 
attainment  of  majority.  Choses  in  action  of  the  ward  were  en- 
forced by  the  guardian  in  his  own  name ;  but  if  he  made  debts 
the  guardian  was  not  bound  to  recognize  them,  no  more  than  a 
father  was  bound  to  recognize  those  of  his  child  or  a  husband 
those  of  his  wife.  The  guardian  was  liable  for  damages  that  re- 
sulted from  the  ward's  torts  —  originally  with  his  own  property, 
later  in  the  first  instance  with  the  estate  of  the  ward  ^  —  no 
matter  in  what  form  the  action  might  be  brought  against  him. 
Conversely,  in  case  of  wrongs  ("  Missetaten  ")  against  the  ward 
the  guardian  was  regarded  as  the  person  injured,  and  he  was  en- 
titled to  collect  the  bot ;  although  this  was  restricted  already  in 
the  Frankish  period  to  injuries  that  affected  his  rights  as  guardian. 
Thus,  there  resulted  from  these  rules  as  early  as  the  first  half  of  the 

1  Heusler,  "Tnstitutionen",  II,  495.  '  Ssp.,  T.  11. 

»  "Lex  Burgundionum",  85,  2.  *  Ssp.,  II,  65,  §  1. 

690 


Chap.  XIII]  GUARDIANSHIP  [§  101 

Middle  Ages  a  judicial  representation  of  the  ward  by  his  guardian 
in  criminal  cases.  Under  the  private  law,  however,  the  guardian 
could  not  appear  as  the  ward's  representative  so  long  as  litigant 
representation  was  unknown  therein.  The  guardian  could  not  ob- 
ligate and  bind  the  ward  in  any  manner ;  he  could  conclude  legal 
transactions  and  contract  debts  in  his  own  name  only.  If  he  paid 
such  debts  with  the  property  of  the  ward  during  the  continuance  of 
the  wardship  he  was  liable  to  his  ward  for  their  amount ;  if  he 
alienated  lands  the  ward  could,  upon  attaining  majority  and 
within  a  year  and  a  day,  demand  them  back  from  any  holder. 
Conversely,  the  ward,  because  of  his  imperfect  capacity  of  action, 
could  not  conclude  juristic  acts  that  were  of  final  binding 
effect  upon  himself ;  like  a  child  under  its  father's  mundium 
("  Hauskind  ")  he  had  the  right  of  revocation  upon  attaining 
majority.  Consequently,  all  transactions  which  he  entered  into 
remained  provisional,  as  did  alienations  of  lands  made  by  the 
guardian. 

(2)  The  modern  law.  —  Wliereas  the  old  usufructuary  form  of 
guardianship  still  prevailed  in  the  Sachsenspiegel  and  the  Saxon 
town  law,  —  in  addition  to  which  it  also  persisted  in  localities 
under  the  medieval  Franconian  law  and  in  the  Frisian-Holland 
law,  —  there  appeared  from  the  1300  s  onward  (in  other  words 
before  the  Reception),  first  in  South  Germany  and  then  in  North 
Germany,  in  the  place  of  these  principles  derived  from  the  mun- 
dium of  the  family-law,  and  in  necessary  connection  with  the 
transformation  of  that  mundium  into  an  obligation  to  care  for 
the  ward  under  public  oversight,  a  new  regulation  of  the  legal 
relation  between  guardian  and  ward  whose  essence  may  be  char- 
acterized as  "  a  bare  administration  of  an  estate,  subject  to  an 
obligation  of  accounting."  ^  The  recognition  of  powers  of  attor- 
ney in  the  private  law  made  it  possible  to  make  the  guardian  a 
representative  of  the  ward  capable  of  declarations  legally  binding 
upon  the  latter.  This  advance  was  doubtless  rendered  neces- 
sary by  the  disadvantages  of  the  provisional  character  of  trans- 
actions relative  to  the  ward's  estate,  just  referred  to.  Hence- 
forth, either  the  guardian  was  permitted  to  act  in  the  ward's 
name  or  the  ward  was  permitted  to  act  personally  with  the  con- 
sent of  his  guardian.^  The  latter  power  was  first  utilized  in  aliena- 
tions of  his  lands,  but  later  also  in  contracting  liabilities  required 
by  his  necessities.     In  the  old  law  there  could  be  no  question  such 

1  Schroder,  "Lehrhuoh"  (.^)th  cd.),  768. 

-  "Rcchtsbuch  nach  Distinktionen",  I,  44,  4. 

691 


§  101]  FAMILY    LAW  [BoOK   IV 

as  this,  "  because  the  guardian  was  obliged  to  maintain  the  chil- 
dren at  his  own  expense  so  long  as  it  served  his  purposes  to  retain 
them  under  his  mundium  " ;  ^  the  profits  of  the  ward's  property 
furnishing  him  the  necessary  means.  With  the  disappe<arance  of 
this  usufructuary  right  the  necessity  arose  of  making  it  possible 
for  the  guardian  to  assume  obligations  in  the  interest  of  the  chil- 
dren. But  when  the  guardian  could  conclude  juristic  acts  that 
could  obligate  the  child,  albeit  only  with  the  hitter's  consent,  the 
ward's  pfoperty  was  "  delivered  much  more  unreservedly  to  the 
guardian  than  formerly,  and  was  much  more  exposed  to  danger 
from  his  dishonest  or  unconsidered  actions  "  ;  ^  since  the  rule  had 
formerly  prevailed,  without  qualification,  that  "  the  ward's  estate 
shall  neither  grow  nor  lessen."  For  this  reason  the  usufruct  of 
the  ward's  property  was  taken  from  the  guardian,  first  from  the 
"  chosen  "  guardian  and  then  from  the  one  appointed  by  court, 
and  later  from  the  "  born  "  guardian  ;  and  his  administration  was 
subjected  to  an  oversight  by  public  officials  which  constantly 
became  more  stringent.  In  alienations  of  the  ward's  lands  he  was 
bound  to  reinvest  the  proceeds  in  other  lands,  to  safeguard  the 
ward's  moneys  in  ways  precisely  defined,  to  render  a  yearly  account 
of  his  administration,  and  also,  frequently,  to  give  security  and 
deliver  an  inventory. 

The  theory  that  was  thus  attained  in  the  later  Middle  Ages,  and 
which  was  sanctioned  by  the  Imperial  Police  Ordinances  of  the 
1500  s,  was  preserved  and  in  details  elaborated  in  modern  times. 
In  this  process,  however,  the  influence  of  the  Roman  law  remained 
merely  superficial.  Under  the  modern  law  of  guardianship  the 
guardian  is  a  representative  of  the  ward  and  acts  in  the  latter's 
place,  although  his  codperation  is  necessary  in  certain  cases.  It 
is  only  exceptionally,  —  for  example  in  the  case  of  purely  bene- 
ficial acts,  —  that  the  ward  can  make,  quite  independently,  a 
legally  effective  declaration  of  will.  The  present  Civil  Code  also 
gives  the  guardian  powers  of  representation  which  entitle  and 
obligate  him  to  care  for  the  person  and  the  property  of  the  ward. 
In  a  considerable  number  of  cases  he  requires  the  assent  of  the 
Court  of  Wards,  but  here  again  it  is  the  guardian  who  acts  and 
not  the  official  body.  By  virtue  of  his  personal  duty  to  care  for 
the  ward's  spiritual  and  physical  welfare  the  guardian  is  bound 
to  attend  to  its  education  and  support.  His  representative  duty 
still  appears  in  criminal  cases  only  in  so  far  as  he  is  bound  to  defend 

1  Heusler,  "Institutionen",  II,  505. 
*  Heusler,  op.  cit.,  506. 

C92 


Chap.  XIII]  GUAEDIANSHIP  [§  101 

the  ward,  and  to  bring  actions  for  offenses  ("  Antragsdelikten  ") 
committed  against  him.  In  civil  cases  he  is  bound  to  conduct  the 
suit  in  the  ward's  place  and  to  take  oath  for  the  ward  when  the 
latter  is  incapable  of  taking  such.  The  care  of  the  ward's  estate 
involves  the  obligation  of  making  an  inventory.  As  respects  his 
administration  of  the  property,  the  statutes  and  the  Civil  Code 
lay  down  a  great  number  of  rules  that  must  be  strictly  observed ; 
in  man}^  cases  official  ratification  is  required.  He  is  forbidden  to 
make  use  of  the  property  in  any  case  for  his  own  benefit.  He 
must  render  an  account,  annually  or  at  shorter  intervals  of  time ; 
and  though  the  father  can  release  from  this  obligation  a  guardian 
by  him  appointed,  he  must  nevertheless,  under  the  present  Civil 
Code,  hand  in  at  definite  intervals  of  time  a  report  upon  the  con- 
dition of  the  estate.  Upon  the  termination  of  the  guardianship 
the  property  must  be  redelivered,  and  a  final  accounting  made 
which  must  be  audited  by  the  state. 

(IV)  Termination.  —  The  guardianship  is  ordinarily  ended  by 
the  ward's  attainment  of  majority,  but  also  of  course  by  the 
latter's  death;  likewise  by  a  declaration  of  death,  by  adop- 
tion, and  by  a  resubjection  to  parental  authority.  In  earlier 
legal  systems  the  acceptance  of  public  office,  admission  to  the  bar, 
and  also  marriage,  involved  the  termination  of  guardianship ;  but 
these  effects  have  not  been  recognized  by  the  existing  law,  save  that 
in  the  case  of  female  minors  the  guardianship  is  restricted  after 
their  marriage  (provided  this  takes  place  with  the  consent  of 
the  guardian)  to  representation  in  their  personal  affairs,  ad- 
ministration of  the  wife's  reserved  estate,  and  the  giving  of  con- 
sent to  such  of  the  husband's  administrative  acts  as  require  the 
wife's  assent.  In  Switzerland  marriage  frees  every  person  from 
the  mundium  of  others  (supra,  p.  59). 

As  in  the  medieval  law,  so  also  in  the  more  modern  law  and  in 
that  of  the  present  day  a  judge  may  remove  an  unfaithful  guardian. 
Such  a  removal  may  be  made  at  the  instance  of  the  ward  or  of  the 
court's  own  motion  ;  the  guardian  may  be  deprived,  in  the  same 
way,  of  particular  riglits.  The  position  of  a  guardian,  as  such,  is 
of  course  also  forfeited  by  one  who  himself  becomes  incapable  of 
legal  action,  or  who  loses  the  other  qualifications  necessary  for 
the  conduct  of  his  office.  The  guardian  may  also  resign  his  office 
when  conditions  intervene  that  would  originally  have  entitled 
him  to  decline  the  assumption  of  the  office. 


693 


102] 


THE    LAW    OF   INHERITANCE 


[Book  V 


BOOK   V.     THE    LAW   OF    INHERITANCE 


Chapter  XIV 


GENERAL  PRINCIPLES 


102.    Origin   and    Nature   of    the 
Germanic  Rules  of  Succes- 
sion. 
I.    The  Historical  Point  of 

Departure. 
II.    Customary,    and    Con- 
tractual   and    Testa- 
mentary Succession. 
III.    Unitary  and  Segregate 
Succession. 


§  103.    Devolution  of  the  Heritage. 
I.    The  Older  Law. 
II.    The  Modern  Law. 
§  104.   LiabiUty  for  ObHgationa  of 
Deceased. 
I.    The  Older  Law. 
II.    The  Modern  Law. 
§  105.    Plurality  of  Heirs. 

I.    The  Older  Law. 
II.    The  IModcrn  Law. 


§  102.  Origin  and  Nature  of  the  Germanic  Rules  of  Succession.^ 
(I)  The  Historical  Point  of  Departure.  —  However  obseure  and 
controverted  may  be  the  beginnings  and  the  oldest  rules  of  the 
Germanic  law  of  inheritance,  it  seems  nevertheless  permissible  to 
assume  that  the  historical  source  of  the  Germanic,  and  therefore 
also  of  the  German,  law  of  inheritance  was  the  original  collective 
ownership  of  the  kindred ;  a  source  of  which  the  later  law  never 
lost  consciousness.  For  the  Germanic  law  of  inheritance,  in  its 
essence,  has  always  remained  primarily  a  law  of  blood  inheritance, 
a  family-law.  Tliis  family-law,  however,  developed  only  gradually 
into  a  law  of  inheritance.  The  origin  and  development  of  this 
branch  of  the  law  were  closely  and  necessarily  associated  with 
the  origin  and  development  of  private  property.  Therefore 
rights  of  inheritance  in  chattels  became  possible  earlier  than 
rights  of  inheritance  in  lands.  So  long  as  all  property,  aside 
from  the  few  objects  of  personal  use  such  as  weapons  and  clothes 
that  were  buried  with  their  owner  (infra,  §§  107,  110),  remained 
in  the  collective  ownership  of  the  sib  group,  the  individual  mem- 
bers of  this  —  that  is  the  heads  of  its  households  ("Ilausvater")  — 
receiving  a  mere  right  of  usufruct  in  the  lands  and  chattels  (the 
cattle  and  agricultural  implements)  of  the  sib,  the  latter's  col- 
lective ownership  was  unaffected  by  the  death  of  any  individual 
member.     It  was  merely  the  persons  of  the  members  entitled  to 

1  Siegel,  "Das  deutsche  Erbrecht  nach  den  Rechtsquellen  des  Mittel- 
alters"  (1853). 

694 


Chap.  XIV]  '      GENERAL   PRINCIPLES  [§  102 

such  usufructuary  rights  that  changed.  Later,  the  chattels 
passed  from  the  sib's  collective  ownership  into  the  ownership,  of 
its  individual  members ;  not,  however,  at  first,  nor  for  a  long  time, 
into  their  unqualified  individual  ("  Sonder-")  ownership.  On  the 
contrary,  they  became  the  collective  property  of  the  families. 
The  house-lord  and  the  heirs  united  within  his  household  and 
under  his  household  authority,  —  that  is,  his  sons,  —  constituted 
as  respects  the  household  estate  a  property  community,  in  which 
the  father  as  the  representative  of  this  community  was  indeed 
accorded  a  primary  right,  above  all  the  usufruct  of  the  household 
property,  but  the  sons  were  also  recognized  as  co-holders  of  rights 
with  him,  and  were  conceded  an  irrevocable  right  of  succession. 
If  the  father  died  they  took  his  place,  thus  making  actual  a  right 
already  existing  in  his  lifetime.  "  The  restraint  upon  the  aliena- 
tion of  the  sequestered  estate  ('  Gebundenheit  der  Verfangen- 
schaft  ')  was  now  transformed  into  a  rule  of  succession ;  "  ^  they 
could  thenceforth  partition  the  family  estate  among  themselves, 
or  remain  upon  it  in  undivided  community  as  owners  in  collective 
hand  (supra,  pp.  139  etseq.).  Within  the  family,  therefore,  there 
were  in  fact  originally  involved  no  rights  of  inheritance  whatever, 
but  merely  a  "  community  succession  "  in  the  collective  property ; 
or  as  the  case  might  be,  if  one  of  the  sons  died  during  the  lifetime 
of  the  father  or  after  his  death  but  during  a  continued  community, 
a  question  of  benefit  of  survivorship  ("  Anwachsung  ").-  The 
principles  of  ownership  in  collective  hand,  and  not  any  special 
principles  of  inheritance  law,  determined  the  legal  nature  of  the 
family-property  and  its  partition  among  the  members  of  the  family. 
If  no  members  of  the  household  community  in  collective  hand 
who  were  capable  of  ownership  were  living,  the  household  property 
reverted  to  the  sib.  But  so  soon  as  this  had  ceased  to  be  a  holder 
of  collective  rights,  either  as  to  all  property  or  at  least  as  to  mov- 
ables, there  became  necessary  some  definite  rule  of  partition ; 
that  is,  a  necessity  arose  for  a  law  of  inheritance  in  the  strict  sense. 
A  similar  development  later  took  place  in  the  case  of  lands  in  so 
far  as  these  also  passed  into  the  ownership  of  the  sib  families, 
becoming  a  part,  and  indeed  the  most  important  portion,  of  the 
household  property.  With  the  disintegration  of  the  house  com- 
munities the  rules  that  had  been  developed  in  the  inheritance  law 
to  define  the  gradation  and  interrelation  of  the  more  remote  kin- 
dred became  controlling  also  within  the  limits  of  the  household  ; 

>  Huber,  "Schw.  Privatrecht",  IV,  541. 
2  Heusler,  "Institutioueu",  II,  528. 

695 


§  102]  THE    LAW    OF   INHERITANCE  [BoOK   V 

but  the  original  distinction  between  the  household,  constituted 
of  the  parents  and  the  children,  and  the  sib,  which  was  entitled 
to  inherit  only  after  the  household,  led  to  a  differentiation  and 
variant  treatment  of  a  "  narrower  "  and  a  '*  wider  "  circle  of 
heirs  that  long  remained  of  great  importance  in  the  definition  of 
the  legal  order  of  succession  {infra,  §  107). 

(II)  Customary,  and  Contractual  and  Testamentary  Succession 
("  gesetzliches  und  gewillkiirtes  Erbrecht").  —  It  is  clear  from 
the  above  that  the  right  of  inheritance  was  not  substantially  dif- 
ferent either  in  origin  or  (at  first)  in  nature  from  other  family 
rights ;  precisely  like  them,  it  was  based  upon  blood  relation- 
ship. The  blood  relatives  had  the  right  and  the  duty  to  ex- 
ercise guardianship  over  the  dependent  members  of  the  sib  ;  as  the 
"  sib  of  the  dead  hand  ",  they  received  the  wergeld  paid  for  a 
fellow  sibman  who  was  killed  and  divided  it  among  themselves,  and 
were  liable  as  "  the  sib  of  the  living  hand  "  for  the  raising  of  a 
wergeld  payable  by  one  of  their  fellows ;  they  were  bound  to  sup- 
port an  impoverished  blood  friend  in  need  of  help ;  similarly  they 
were  entitled  by  virtue  of  blood  relationship  to  the  estate  set 
free  by  the  death  of  one  of  their  fellows.  It  is  noteworthy  that 
in  the  legal  theory  of  the  later  ^Middle  Ages  the  duty  of  support  and 
the  right  of  inheritance  were  still  regarded  as  mutually  necessary 
complements,  —  if  the  estate  fell  to  the  commune  or  to  the  State 
for  default  of  kindred  entitled  to  inherit,  this  was  justified  by  the 
fact  that  the  duty  of  support,  the  burden  of  caring  for  the  poor,^ 
was  borne,  in  the  last  analysis,  by  these  public  groups.  True, 
this  connection  later  became  less  evident.  The  right  of  support 
retained  in  the  modern  law,  —  in  the  Civil  Code  only  as  between 
kindred  in  direct  line,  but  in  the  Swiss  Civil  Code  also  as  between 
brothers  and  sisters,  —  has  been  set  apart  from  the  rules  of  the 
inheritance  law  as  an  independent  institute  restricted  within  a 
narrow  range  of  application.  Who  was  heir  depended,  therefore, 
in  the  view  of  the  Germanic  and  the  early  German  law  solely 
upon  blood.  The  inheritance  law  was  withdrawn,  in  principle, 
from  arbitrary  regulation  by  man  :  "  solus  deus  heredem  facere 
potest,  non  homo."  "  Whatever  the  dying  man  lets  fall  must  fall 
into  the  hand  of  the  heir  appointed  by  nature."  ^  There  existed 
in  the  beginning  no  voluntary  succession  of  inheritance,  but  a 
customary  ("  gesetzliche  ")  succession  only.  The  deceased  was 
unable  to  alter  by  his  juristic  act  the  rights  of  his  kindred,  or  to 

*  Rietschel,  art.  "  Armenrecht "  in  Hoop's  "  Reallexikon ",  I  (1911),  1234. 
2  Heusler,  "Institutionen",  II,  531. 

GOG 


Chap.  XIV]  GENERAL   PRINCIPLES  [§  102 

create  in  the  place  of  that  fixed  by  nature  another  order  of  succes- 
sion ;  for  the  right  enjoyed  by  the  legal  heirs  was  in  principle  irrevo- 
cable. This  fundamental  characteristic  of  the  old  Germanic  law  of 
inheritance,  which  was  observed  and  described  by  Tacitus  with 
entire  correctness,  seemed  to  him  to  stand  in  striking  contrast  to 
the  Roman  law,i  which  based  the  order  of  inheritance  primarily 
upon  a  testator's  will,  and  only  secondarily  upon  rights  of  intestate 
succession  enjoyed  by  the  kindred.  But  the  strict  Germanic 
order  of  succession  was  in  entire  agreement  with  the  general  condi- 
tions and  views  of  a  primitive  and  unindividualistic  society. 
Moreover,  it  was  identical  with  the  original  institutions  of  other 
Indo-Germanic  races.  Thus,  for  example,  among  the  Greeks 
the  testament  was  first  introduced  by  Solon ;  and  even  among 
the  Romans  the  testamentary  freedom  that  is  recognized  in  the 
Twelve  Tables,  —  which  moreover  was  very  much  restricted, 
as  regarded  form,  by  the  cooperation  of  the  "  comitiae",  —  seems 
to  have  applied  (as  has  recently  been  shown)  only  to  non-manci- 
pable  chattels,  that  is  to  say  to  "  pecunia  "  ("  Kleinvieh  "  : 
calves,  sheep,  goats,  and  pigs) ;  and  not  yet  to  the  "  res  mancipi  " 
(slaves  and  "  Grossvieh  "  :  cattle  proper)  that  made  up  the  most 
important  part  of  the  estate.^  In  time  the  German  law,  develop- 
ing rudiments  that  were  already  present  within  it  at  an  early 
day,  came  to  recognize  a  voluntary  testamentary  order  of  suc- 
cession {infra,  §§  110-13),  which  was  determined  either  by  con- 
tract or  by  unilateral  testamentary  disposition  of  the  deceased. 
Nevertheless  it  may  safely  be  said  that  despite  the  equal  effect 
that  was  conceded  in  Germany  (unlike  France)  to  the  testate  order 
of  succession,  intestate  succession  resting  upon  blood  relationship 
remained  the  rule,  testamentary  succession  being  regarded  only 
as  a  variant  system  created  for  a  special  case ;  which  was  ex- 
pressed in  the  proverb  "  wer  will  wohl  und  seelig  sterben,  der  lasse 
sein  Gut  den  rechten  Erben  "  ("  he  who  would  die  well  and  blessed 
should  leave  his  property  to  the  legal  heir").  The  statutory 
order  of  inheritance  failed  to  take  effect  only  when  the  deceased 
had  concluded  a  contract  or  had  made  a  testament  otherwise 
defining  the  order  of  succession.  The  same  is  true  also  in  the  law 
of  the  present  day.  "  Our  statutory  order  of  succession  is  no 
*  order  of  intestate  succession,'  and  cannot  be  based  upon  the 
presumptive  will  of  the  deceased."  ^     This  view  is  gi\-en  clear 

'  "Germania",  20. 

-  Mitteis,    "Romisches   Privatrecht  bis  auf  die   Zeit   Diokletians ",  I 
(1908),  82.  3  Gierke  in  Holtzendorff-Kohler,  I,  546. 

697 


§  102]  THE    LAW    OF   INHERITANCE  [BoOK   V 

expression  in  the  arrangement  of  the  Civil  Code,  which  begins 
its  provisions  respecting  the  inheritance  law  with  the  statutory 
order  of  succession,  following  this  with  a  regulation  of  testaments. 
The  Swiss  Civil  Code  ])r()('eeds  in  the  same  manner. 

(Ill)  Unitary  and  Segregate  Succession.'  —  As  already  men- 
tioned, the  German  law  of  inheritance  was  developed  independ- 
ently as  respects  chattels  and  lands,  and  has  always  preserved 
certain  differences  in  the  order  of  succession  to  lands  and  to  chat- 
tels although  the  effect  of  this  distinction  was  much  profounder 
in  the  English  law,  in  which  it  has  remained  to  the  present  time. 
This  fact  shows  that  the  theory  of  the  Roman  law  in  its  final 
form,  according  to  which  the  heir  continued  the  legal  personality 
of  the  deceased  in  the  entirety  of  his  legal  relations,  was  originally 
wholly  foreign  to  Germanic  law.  While  lands  and  chattels  were 
subjected  to  a  different  order  of  inheritance  there  could  of  course 
be  no  talk  of  the  idea  that  "  the  subjective  unity  which  charac- 
terized the  property  in  the  hands  of  the  deceased  "  ^  survived 
in  the  person  of  the  heir.  In  this  sense,  therefore,  the  concept 
of  universal  succession  was  foreign  to  Germanic  law,  but,  as 
Heusler  has  shown,^  in  another  sense  it  also  recognized  a  "  uni- 
versal succession."  For  it  is  characteristic  of  and  essential  to 
every  system  of  succession  "  that  a  complex  of  property  rights 
and  relations  passes  by  virtue  of  a  single  title."  The  heir  is  sub- 
stituted in  the  legal  relations  that  pass  to  him  by  the  single  legal 
act  through  which  he  acquires  the  heritage,  and  not  by  virtue  of 
various  acts,  each  for  the  transfer  of  a  particular  right,  which 
would  otherwise  be  necessary.  However,  it  was  not  necessary 
that  the  entire  property  should  pass  to  the  heirs  or  to  one  heir, 
as  was  theoretically  the  case  in  the  Roman  law  (general  succes- 
sion). Again,  when  only  certain  classes  of  legal  relations  fall  to 
the  heir,  as  for  example  only  the  assets  included  in  the  estate 
and  not  the  obligations,  their  transfer  is  effected  under  the  single 
title  of  a  unitary  succession.  Again,  in  the  German  medieval 
law  the  heir  had  an  action  against  any  person  who  himself  claimed 
to  have  a  right  in  the  heritage  or  who  contested  the  right 
of  such  complainant  thereto :  namely  an  action  "  von  erves 
wegene  "  ("  on  account  of  the  heir  "),  which  compelled  a  defendant 
who  lost  the  suit  to  deliver  the  objects  whose  possession  he  had 

»  Frhr.  v.  Freytagh-Loringhoven,  "Der  Sukzessionsmodus  des  deutschen 
Erbrcchts"  (1908) ;  with  which  compare  7.  Gierke  in  Z^  R.G.,XXX  (1909), 
426-420. 

^  Gierke,  op.  cit.,  546. 

'  "Institutionen",  II,  532  et  seq. 

698 


Chap.  XIV]  GENERAL   PRINCIPLES  [§  102 

withheld.  This  Germanic  action  for  the  heritage,  hke  the  Roman 
"  hereditatis  petitio  ",  can  only  be  explained  as  a  universal  suc- 
cession in  the  special  sense  indicated.^  It  may  therefore  be  said 
that  the  property  falling  to  the  heir  passed  to  him  as  an  objective 
unity,  without  regard  to  the  question  whether  it  constituted  the 
entire  property  of  the  deceased  or  only  a  certain  part  of  that. 
Consequently,  inasmuch  as  this  concept  of  unitary  succession 
that  underlay  the  Germanic  rule  of  succession  by  no  means  re- 
quired a  unitary  treatment  of  the  heritage,  it  was  possible  to  divide 
this  into  special  ("  Sonder-")  estates,  and  to  transmit  these 
in  different  manner  to  the  heirs.  This  idea  received  a  very  elabo- 
rate development  in  medieval  law.  Not  only  was  the  variant 
treatment  of  land  and  chattels  under  the  inheritance  law  retained, 
but  there  were  also  formed  within  the  one  and  the  other  category 
special  masses  or  complexes  of  property  ("  VermogensinbegriflFe  ") 
subject  to  peculiar  principles  of  inheritance.  Of  real  estate,  the 
fief,  manorial  lands,  entailed  lands  ("  Stammgiiter  "),  restricted 
herital  lands  ("  Erbgiiter  "),  and  family  fideicommissa  were  thus 
subjected  to  a  different  rule  of  succession  than  the  fee  ("  Eigen  ") 
of  the  Territorial  law;  and  heritable  ("  Erb-")  and  purchased 
("  Kauf-")  estates  were  distinguished  (supra,  p.  167).  Among 
chattels  the  paraphernalia  ("  Gerade  ")  and  the  warrior's  accoutre- 
ments ("  Heergewate  "),  particularly,  were  the  objects  of  special 
rules  of  inheritance.  The  paraphernalia  (supra,  pp.  629,  637), 
after  dissolution  of  the  marriage  by  death  of  the  wife,  passed  into 
the  "  niece  "  ("  Niftel-")  seisin  of  her  nearest  female  kinswoman. 
The  "  Heergewate  "  or  "  Heergerate  "  consisted  of  the  military 
equipment,  weapons  and  charger,  which  were  once  buried  with  the 
dead  warrior  in  his  grave  or  burned  with  his  body  (infra,  §  110), 
and  were  reserved  after  the  dying  out  of  this  custom  to  the  son 
or  the  nearest  sword-kinsman.^  In  the  law  of  Upper  Germany, 
Flanders,  Brabant,  and  Friesland,  and  especially  in  the  Anglo- 
Norman  and  French  laws,  there  was  also  developed  from  the 
reversionary  rights  ("  Wiederkehrrecht  ",  supra,  p.  628)  com- 
mon in  the  older  law,  —  by  virtue  of  which  gifts,  especially  those 
to  one's  issue,  reverted  to  the  donor  upon  the  donee's  death,  — 
an  individual  riglit  of  inheritance  by  parents  in  such  gifts  made 
by  them  to  their  issue  ("droit  de  retour  ").     This  was  adopted 

1  "  Institutionen  "  II.  539. 

2  "Lex  Angl.  et  Werin",  31;  Ssp.,  T,  27,  §2;  Klatt,  "Das  Heerge- 
wate", in  Beyerle's  "Beitriige",  II,  2  (1908).  See  also  Keutgen  in  Vj.  Soz. 
W.  G.,  VIII  (1910),  178  et  seq.;  Briinner,  "Zur  Geschichte  der  iiltesten 
deutschen  Erbschaf tssteuer "  (see  infra,  p,  743),  25  et  seq. 

699 


§  102]  THE    LAW   OF   INHERITANCE  [BoOK   V 

by  the  Code  Civil. ^  That  property  which  was  not  set  apart 
under  a  special  rule  of  succession  was  designated  by  the  sources  as 
the  "  heritage  "  ("  Erbe  ")  in  the  proper  sense  of  the  word,  — so 
that  the  Sachsenspiegel,  for  example,  declares  that  everything  not 
lielonging  to  the  morgive  and  the  paraphernalia  of  the  wife  is  her 
heritage.-  But  these  special  cases  of  succession  were  also  universal 
successions  in  the  sense  above  indicated ;  namely,  successions 
to  masses  of  property  ("  Vermogensinbegriffe  "),  and  not  merely 
to  specific  things.  First  of  all  in  the  cities,  and  then  after  the 
Reception  everywhere,  the  theoretical  unity  of  the  entire  heritage 
was  established,  and  the  application  of  the  Roman  concept  of  a 
"  universal  "  succession  was  thereby  made  possible  in  the  sense 
of  a  "  general  "  succession.  At  the  same  time  the  effects  of  the 
older  view  continued  to  be  felt.  For  example  it  was  nowhere 
possible  to  establish  the  Roman  principle  that  inheritance  must 
be  based  either  solely  upon  testamentary  succession  or  solely 
upon  intestate  succession.  Again,  liability  for  obligations  con- 
tinued to  be  differently  regulated  than  in  the  Roman  law,  for  the 
reason  that  the  idea  of  a  perpetuation  in  one  person  of  the  entire 
personality  of  the  deceased  found  no  footing.  And  above  all, 
special  rules  of  succession  in  particular  forms  of  property  were 
preserved  in  the  regional  systems  (infra,  §§  114-16),  and  have 
been  in  part  further  developed  by  statute  in  very  recent  times. 

§  103.  Devolution  of  the  Heritage.^  (I)  The  Older  Law.  — 
Since  the  heir  was  freed  by  the  death  of  the  deceasetl,  according 
to  the  view  of  the  Germanic  law,  merely  from  a  limitation  upon 
his  powers  (inasmuch  as  he  then  entered  into  the  administra- 
tion of  an  estate  whose  constituent  elements  had  already  belonged 
to  him  in  the  lifetime  of  the  deceased  "*),  and  since  it  was  clearly  de- 
fined by  statute  icho  was  heir  by  virtue  of  blood  relationship,  the 
heritage  was  logically  regarded  as  passing  to  the  heir  immediately 
upon  the  death  of  the  deceased.  His  acquisition  of  the  estate 
was  not  dependent  upon  an  act  of  will  and  an  expression  of  will 
on  his  part.  It  was  not  the  heir  who  must  perform  a  juristic 
act ;  the  deceased  himself,  by  his  death,  effected  the  substitution 
of  the  heir  in  his  place.     As  Brunner  has  shown,''  it  must  be  as- 

1  Brunner,  "Uber  den  germanisehen  Ursprung  des  droit  do  retour", 
in  his  "Forschungen"  (1894),  676-765. 

2  Ssp.,  I,  24,  §  :i. 

^  Cosnck,  "Dor  Besitz  dos  Erbon"  (1877);  Behrend,  "Anovang  und 
Erbcngewere",  in  th(^  "Brcslaucr  Fostschrift  fiir  Beseler"  (1885). 

'  V.  Amira,  "Rocht",  (2d  od.),  108. 

'-  In  the  essay  (cited  infra,  p.  740)  on  the  eontinncd  life  of  the  dead, 
31  et  seq.,  in  which  it  is  shown  that  tlie  primitive  Germans,  doubtless  like 

700 


Chap.  XIV]  GENERAL   PRINCIPLES  [§  103 

sumed  that  the  deceased  was  conceived  of  in  Germanic  antiquity 
in  a  purely  materialistic  manner  as  himself  active,  as  himself  plac- 
ing the  heir  in  possession  of  the  heritage  by  a  juristic  act  that 
corresponded  roughly  to  the  legal  formality  of  "  exire  "  in  the 
conveyance  of  land  (supra,  p.  242).  This  view  is  the  explanation 
of  the  legal  proverb  already  mentioned  supra  (p.  190),  —  which 
though  attested  only  from  the  1400  s  onward  perfectly  expressed 
the  primitive  ideas  here  in  question,  —  "  der  Tote  erbt  den  Le- 
benden  "  :  that  is,  the  dead  person  makes  the  living  his  heir  ("  er- 
ben  "  used  transitively,  as  in  the  compound  "  vererben  ").  There- 
fore upon  the  death  of  the  deceased  the  seisin  of  lands  included  in 
the  estate  also  passed  directly  to  the  heir;  a  rule  which  likewise 
found  expression  in  the  French  maxim  "  le  mort  saisit  le  vif  ", 
the  dead  seises  the  living.  This  was  true  even  when  the  heir 
was  absent  or  unknown,  and  when  a  third  person  not  entitled 
thereto  was  in  possession  of  the  heritage.  In  these  cases  the  law- 
ful heir  acquired,  if  not  the  physical,  at  least  the  ideal  seisin  of  the 
heritage.  There  could  never  be  a  break  in  the  seisin ;  "  the  hand 
of  the  deceased,  cold  and  weak  in  death,  let  fall  the  ear  of  corn, 
the  symbol  of  his  land ;  but  it  fell,  not  to  the  floor,  but  into  the 
hand  of  the  heir ;  it  had  no  time  to  become  lordless,"  ^  There- 
fore, when  the  heir,  particularly  if  he  was  not  seised  at  the  death 
of  the  deceased  (that  is,  if  he  was  not  "  sitting  "  upon  the  herit- 
age at  the  death  of  the  deceased),  performed  a  legal  and  for- 
mal act  of  taking  possession,  and  when  in  so  doing  he  caused  to 
be  issued  a  judicial  decree  instating  him  in  the  possession  (as 
was  quite  a  common  practice),  this  did  not  serve,  as  might  be 
supposed,  to  create  the  seisin,  but  merely  for  its  visible  establish- 
ment and  the  defense  of  his  right  as  against  third  parties.  If  he 
was  prevented  from  taking  possession  by  an  abator  who  did  not 
contest  his  right  of  inheritance  but  relied  upon  some  special  legal 
title,  —  as  e.g.  that  of  a  vendee,  —  then  the  heir,  in  case  he  could 
not  allege  a  violent  dispossession,  was  obliged  to  bring  an  action 
against  him  as  owner  for  delivery  of  possession.  On  the  other 
hand,  if  such  third  person  refused  delivery  because  he  claimed  to 
be  himself  the  heir,  or  because  he  contested  the  claimant's  quali- 
fications as  heir,  then  the  latter,  relying  upon  his  ideal  seisin, 
brought  an  action  for  the  inheritance   ("  von  erves  wegene  "), 

many  other  races  in  an  early  stage  of  civilization,  reg^arded  dead  persons  as 
subjects  of  rights  and  duties.     The  principles  laid   down  on  p.  46  supra 
that  physical  death  was  always  regarded  as  the  end  of  capacity  for  rights 
must  be  limited  accordingly  as  respects  the  oldest  period. 
1  Heusler,  "Institutionen",  II,  531. 

701 


§  103]  THE    LAW    OF    INHERITANCE  [BoOK   V 

which  secured  to  him  in  litigation  the  preferential  status  of  one 
enjoying  seisin.  In  some  medieval  legal  systems,  particularly 
in  those  of  the  Netherlands,  resort  was  had  at  the  instance  of  the 
claimant  to  the  heritage  (whose  claim  must  be  made  within  a  year 
and  day  after  the  death  of  the  deceased)  to  a  peculiar  procedure 
called  the  right  of  "  Erbhaus  "  or  "  Sterbehaus  "  (patrimonial- 
house,  death-house).  This  was  preserved  in  the  Netherlands 
down  into  the  1800  s.  If,  namely,  the  abator  refused  to  deliver 
the  land  to  the  person  claiming  to  be  heir,  alleging  himself  to  be 
the  heir,  tlien  "  the  bench  was  erected  ",  that  is  a  session  of 
the  court  was  held,  in  the  very  house  where  the  deceased  died. 
Thereupon  the  claimant  to  the  inheritance,  proceeding  as  in  the 
action  of  "  anefang  ",  that  is  grasping  the  door-post  in  a  formal 
manner  prescribed  by  law,  demanded  that  his  seisin  be  recog- 
nized. The  court  examined  summarily  the  evidence  submitted 
by  the  parties  as  heirs,  and  granted  the  seisin  to  that  party  who 
was  able  to  produce  the  better  proofs,  thereby  assuring  to  him  the 
role  of  defendant  in  the  action  for  the  heritage,  and  meanwhile  the 
authority  to  act  as  heir.  If  the  occupant  of  the  lands  opposed 
no  allegation  of  an  independent  right  as  heir  to  the  claimant's 
demand  for  instatement  in  possession,  yet  wished  to  deliver  them 
only  after  due  proof  of  the  legitimate  heirship  of  the  claimant 
and  upon  judicial  authority,  or  if  the  judge  had  taken  the  herit- 
age into  his  custody  {e.g.  because  the  heirs  were  unknown)  an 
instatement  of  the  heir  by  the  court  was  common,  in  Germany 
as  elsewhere.  This  was  likewise  required  to  be  demanded  within 
a  year  and  a  day,  since  "  the  death-house  remained  open  "  for 
that  period  only.  Here  again  the  one  claiming  as  heir  performed 
a  formal  act  of  taking  possession  "  boven  an  dem  dorstele  und 
neden  an  der  swellen  "  ("  above  on  the  door,  and  below  on  the 
threshold  ") ;  ^  at  the  same  time  he  was  required  to  give  security 
"  for  the  unconditional  delivery  of  the  heritage  to  whatever  per- 
son might  later  present  himself  with  better  title."  Thereupon 
the  court  instated  him  in  possession.  As  the  formula  customary 
in  Basel  ran,  it  set  him  "  in  the  power  and  seisin  of  all  the 
heritage  and  property  which  the  deceased  had  left  at  Basel  and 
in  the  Holy  Roman  Empire."  ^  Such  judicial  instatement 
("  Einsetzung  ")  in  possession  was  originally  usual  only  in  special 
cases  that  required  the  seisin  to  be  established  in  a  legally  for- 
mal manner ;  but  toward  the  end  of  the  Middle  Ages,  doubtless 
under  the  influence  of  the  Roman  law,  it  became  customary  in 
»  Cf.  Ileusler,  "Institutionen  ",  II,  564.  "  Ibid.,  538. 

702 


Chap.  XIV]  GENERAL   PRINCIPLES  [§  103 

many  regions,  particularly  in  South  Germany,  to  entrust  the  con- 
trol of  the  inheritance  to  the  public  authorities  in  all  cases,  and 
to  prohibit  the  heir  from  himself  reducing  the  heritage  to  posses- 
sion. The  "  reformations  "  of  town-law  prescribed  in  general 
terms  a  judicial  investiture,  thereby  sacrificing  to  be  sure  the 
Germanic  legal  principle  of  the  immediate  devolution  of  the  in- 
heritance. The  heir  was  forbidden  to  take  possession  immedi- 
ately upon  the  death  of  the  deceased  ;  he  was  required  to  observe, 
first,  the  "  rest  "  of  the  heritage  ("  Nachlassruhe  ").  To  this  re- 
gard shown  for  the  decedent  and  his  widow  was  due  the  origin  of 
the  institute,  already  mentioned,  of  the  "  thirty  days  "  (supra, 
p.  636) ;  which  however  also  inured  to  the  benefit  of  the  heir 
himself,  since  he  need  not  until  after  the  expiration  of  such  term 
make  answer  to  creditors  of  the  deceased,  claimants  to  the  estate, 
or  coheirs.  On  the  other  hand,  the  rules  already  mentioned  con- 
cerning judicial  investiture  show  that  the  retaking  of  possession 
must  happen  within  a  year  and  a  da3^  After  the  expiration  of 
such  period,  —  in  the  case  of  lands  after  expiration  of  thirty-one 
years  and  a  day,  —  the  heir  lost  his  right  under  the  rule  of  pre- 
clusive prescription,  unless  he  was  in  a  situation  of  actual  neces- 
sity. In  this  case  the  judge  confiscated  the  property  as  heir- 
less.^ 

(II)  The  Modern  Law.  — After  the  Reception  the  Roman  rules 
regulating  the  devolution  of  the  inheritance  attained  the  authority 
of  common  law.  Under  them,  a  direct  acquisition  of  the  title, 
similar  to  that  of  the  Germanic  law,  took  place  only  in  the  case 
of  children  ("  sui  heredes  "),  an  acceptance  of  the  inheritance 
by  the  heir,  either  express  ("  hereditatis  aditio  ")  or  tacit  ("  pro 
herede  gestio  "),  being  required  in  other  cases.  The  Romanists 
were  able  to  secure  the  rejection  of  the  old  Germanic  principle  by 
the  common  law  notwithstanding  that  such  rejection  directly 
contradicted  the  popular  sense  of  right,  and  some  of  the  older 
and  modern  regional  systems  also  abandoned  it  (for  example, 
the  "  reformations  "  of  Nuremberg  and  Frankfort,  the  Land- 
recht  of  Mainz,  of  Wiirttemberg  and  of  Bavaria,  and  the  Austrian 
and  the  Saxon  Codes),  but  many  other  regional  systems  retained 
it,  at  least  to  the  extent  of  still  regarding  the  title  as  passing  to 
the  heir  directly  upon  the  death  of  the  deceased.  These  systems 
were  followed  by  the  Prussian  "  Landrecht "  and  by  a  Liibeck 
statute  of  1862,  —  and  this  both  as  to  statutory  and  testamentary 
succession;    whereas  the  Code  Civil  retained  the  Germanic  rule 

1  Ssp.,  I,  28. 
703 


§  103]  THE    LAW    OF    INHERITANCE  [BoOK   V 

only  in  the  case  of  statutory  heirs  (tlie  "  heritiers  legitimes  " 
and  the  "  legataire  universel  "),  On  the  other  hand,  most  of 
these  same  legal  systems  succumbed  to  the  theory  of  the  Roman 
law  (which  attained  the  authority  of  common  law)  that  the  pos- 
session of  the  heritage  could  be  acquired  only  directly  and  not 
derivatively,  inasmuch  as  they  abandoned  the  direct  transfer 
of  possession  to  the  heir  and  required  a  special  act  of  taking  pos- 
session on  his  part  {.'iiiprd,  pp.  211  ct  seq.).  The  Civil  Code  has 
followed,  in  general,  the  Prussian  law,  and  has  thus  again  given 
general  validity  to  the  old  Germanic  law :  so  soon  as  the  owner  is 
dead,  the  heritage  passes  by  force  of  law  to  the  heir  (§  1942),  and 
the  possession  also  passes  to  him  without  further  formalities,  and 
without  regard  to  the  question  whether  or  not  the  heir  possess  any 
actual  control  over  the  things  included  in  the  heritage  (§  857). 
Therefore,  as  in  the  old  Germanic  law  there  can  now  be  no  estate 
in  abeyance  ("  ruhende  "),  and  all  disputes  concerning  the  inter- 
pretation of  this  one-time  institute  of  the  common  law  have  ended. 
The  heir  may,  however,  renounce  the  heritage  that  falls  to  him, 
provided  that  he  declare  within  a  certain  time  whether  he  will 
refuse  or  accept  it,  —  that  is,  whether  he  will  or  will  not  make  use 
of  his  right  to  renounce  it;  acceptance  therefore  signifies  in  the 
present  law  renunciation  of  the  right  to  refuse  the  inheritance. 
The  Swiss  Civil  Code  has  established  for  all  Switzerland,  for  the 
future,  the  rule  of  the  Germanic  law  governing  the  acquisition 
of  the  heritage.  This  had  already  existed  in  most  of  the  German 
cantons. 

Many  "  reformations  "  of  town-law,  and  later  numerous  stat- 
utes, required  that  either  in  all  or  at  least  in  certain  cases  the  pro- 
bate court  must  intervene  in  the  settlement  of  the  estate  by  pub- 
lication of  the  testament,  by  delivery  of  the  heritage  to  the  heirs 
it  appointed,  and  so  on ;  and  the  modern  codes  also  retained  the 
view  that  the  State  is  bound  to  see  to  the  proper  transfer  of  the 
property.  The  nature  and  the  extent  of  such  cooperation  by 
the  State  was,  however,  variously  defined.  As  contrasted  with  the 
Austrian  Code,  according  to  which  no  one  might  take  possession 
of  an  estate  by  his  own  act  but  must  litigate  his  right  of  inheritance 
in  court,  the  Prussian  "  Landrecht,"  the  Code  Civil,  the  Saxon  and 
the  Zurich  Codes  were  content,  generally  speaking,  to  prescribe 
a  judicial  "  sealing  "  or  division  of  the  heritage  only  when  the 
heirs  were  unknown,  or  missing,  or  minors,  or  when  a  petition 
was  made  to  that  effect;  the  Code  Civil,  moreover,  provides 
the  same  in  every  case  of  testamentary  succession.     The  Civil 

704 


Chap.  XIV]  GENERAL   PRINCIPLES  [§  104 

Code,  like  the  earlier  codes,  provides  for  the  cooperation  of  the 
probate  court.  Under  it  (§  1960)  the  latter  is  bound  to  care  for 
the  security  of  the  heritage  in  case  of  necessity,  —  namely  when 
the  heir  is  unknown  or  when  the  heritage  has  not  yet  been  un- 
questionably accepted ;  for  which  purpose  it  may  order  the  at- 
tachment of  seals,  the  deposit  of  money,  commercial  paper,  and 
valuables,  the  preparation  of  an  inventory  of  the  property,  the 
appointment  of  an  administrator,  and  so  on.  In  other  cases  it  is 
left  to  state  legislation  to  regulate  in  more  detail  the  security  of 
the  heritage ;  save  that  there  is  a  provision  of  the  imperial  law 
forbidding  the  testator  to  prohibit  the  sealing  of  the  estates  (as 
was  permitted,  for  example,  under  the  Prussian  law).  The  Civil 
Code  has  taken  over  from  the  Prussian  law,  also,  the  voucher  or 
"receipt"  of  inheritance  ("  Erbschein  "),  —  unknown  to  the 
common,  to  the  Saxon,  and  to  the  French  law,  —  which  is  given 
to  the  heir  by  the  probate  court  in  witness  of  his  right  to  inherit, 
and  which  enjoys  public  faith. 

§  104.  Liability  for  Obligations  of  the  Deceased.^ — (I)  The  Older 
Law.  —  Inasmuch  as  purely  personal  legal  relations  are  always 
necessarily  non-heritable,  and  since  the  idea  was  unknown  to  the 
Germanic  law  that  the  legal  personality  of  the  deceased  was  con- 
tinued in  the  heir,  it  necessarily  followed  that  by  no  means  all  the 
legal  relations  to  which  the  deceased  had  been  a  party  were  con- 
tinued beyond  his  death.  In  particular,  there  was  nothing  in 
the  Germanic  law  to  prevent  certain  obligations  from  determining 
upon  the  death  of  the  deceased.  On  the  other  hand,  the  heir  was 
doubtless  liable  to  some  extent,  even  in  the  oldest  Germanic 
law,  for  obligations  of  the  deceased.  To  what  extent  this  was  the 
case  is  debatable,  and  "  is  a  question  that  can  hardly  be  answered 
with  entire  certainty  from  the  sources  as  respects  the  earliest 
period."  -  The  provisions  of  the  folk-laws  differ  from  one  another. 
In  some  of  them,  —  as  for  example  in  the  Visigothic,  Burgundian, 
and  Lombard,  —  Roman  influences  are  perceptible;  most  of 
them  refer  to  liability  for  wergeld.     But,  as  Heusler  has  shown, ^ 

1  Stobbe,  "tjber  das  Eintreten  des  Erben  in  die  obligatorisehen  Ver- 
haltnisse  des  Erblassers ",  in  J.  B.  gem.  R.,  V  (1S62),  293-349 ;  Lewis,  "Die 
Succession  des  Erben  in  die  Obligation  des  Erblassers  nach  deutscheu 
Recht"  (1864);  Frhr.  v.  Freytagh-Lorinqhoven,  "  Die  Schuldenhaftung  des 
Erben  nach  den  livlilndisehen  Rechtsbiichern",  in  Z'-.  R.  G.,  XXVII 
(1906),  92-118;  "  Beispruchsreeht  iind  Erbenhaftung",  in  Z-.  R.  G., 
XXVIII  (1907),  69-102;  Ranch,  " Gewiihrschaf tsverhiiltnis  und  Erbgang 
nach  iilterem  deutsehen  Recht "  {supra,  p.  407),  550  et  seq. ;  Gierke,  "  Schuld 
und  Haftung",  90  et  seq. 

2  Heusler,  "Institutionen",  II,  541.  '  Ibid.,  541  et  seq. 

705 


§  104]  THE    LAW   OF   INHERITANCE  [BoOK  V 

conclusions  concerning  other  obligation  cannot  be  drawn  directly 
from  the  treatment  of  liability  for  wergeld,  because  the  wergeld 
was  from  the  beginning  a  liability  of  the  entire  sib  or  of  the  next 
heirs,  "  inasmuch  as  such  composition  was  given  to  avoid  the 
blood-feml,  which  similarly  threatened  the  entire  sib  and  not  alone 
the  killer."  As  respects  the  medieval  law,  the  Sachsenspiegel, 
in  a  passage  which,  to  be  sure,  is  likewise  much  debated,  gives 
us  the  information  that  certain  obligations  were  regarded  as  not 
belonging  to  the  heritage,  and  therefore  as  lapsing  upon  the  death 
of  the  deceased  ;  and  that  the  heir's  liability  was  limited  to  the 
value  of  the  chattels  inherited.^  Purely  personal  ol)ligations, 
such  as  those  arising  from  larceny  and  robbery,  and  similarly  all 
delictual  obligations,  were  extinguished  by  the  death  of  the  de- 
ceased unless  they  had  already  been  established  and  measured  by  a 
judgment  or  by  composition.  Among  contractual  obligations  only 
those  were  heritable  for  which  the  deceased  had  received  and  left 
in  the  heritage  a  "  wederstadinge  ",  to  use  the  expression  of 
the  Sachsenspiegel :  that  is,  a  value  in  exchange.  By  this  there 
may  be  meant,  as  Heusler  exjDlains,^  obligations  that  "  have 
enabled  the  deceased  to  leave  the  heritage  and  the  heirs  to  receive 
it  in  its  existing  form."  In  this  case  the  word  "  wederstadinge  " 
would  not  have  had  "  the  meaning  of  an  actual  and  demonstrable 
increase  of  the  inheritance  ",  but  that  of  "  an  act  of  performance 
('  Leistung  ')  which,  although  no  longer  present  '  in  natura  ', 
nevertheless  has  helped  to  bring  the  heritage  to  the  heirs  in  its 
present  form."  According  to  this  principle,  promises  of  gifts, 
promises  of  alienations,  and  also  gaming  debts,  were  non-herit- 
able ;  but  debts  due  for  loans  were  heritable.  The  sources  that 
follow  the  Sachsenspiegel,  —  equally  those  of  the  group  of  Magde- 
burg town-law  and  the  Schwabenspiegel,  and  the  town-laws  of 
South  Germany,  —  no  longer  recognized  the  requisite  of  a  "  wed- 
erstadinge." On  the  contrary  they  treated  all  contractual  obli- 
gations of  the  deceased  as  constituting  a  portion  of  the  heritage, 
merely  recognizing  certain  special  exceptions  to  this  rule ;  as  for 
example  that  of  debts  that  violated  the  prohibition  of  usury  by 
containing  a  promise  of  interest.  That  obligations  of  suretyship 
were  likewise  non-heritable  under  the  older  law  has  already  been 
remarked  {supra,  p.  484)  ;  their  heritable  character  was  recognized 
only  from  the  second  half  of  the  1200  s  onward,  and  in  isolated 
cases.  Now  in  so  far  as  the  heir  was  held  liable  for  obligations  of 
the  deceased,  this  liability  could  be  enforced  under  the  older  law, 
1  Ssp.,  I,  6,  §  2.  2  Op.  cit.,  549. 

700 


i 


Chap.  XIV]  GENERAL   PRINCIPLES  [§  104 

—  as  this  still  found  expression  in  the  statement  of  the  Sachsen- 
spiegel,  —  only  against  the  chattels  he  inherited.  This  principle 
was  a  consequence  of  the  fact  that  the  decedent  had  been  free 
to  dispose  of  his  chattels  only,  while  bound  as  regarded  the  lands 
by  the  heirs'  rights  in  expectancy  and  of  co-alienation.  In  fact 
"  the  freedom  of  lands  from  liability  for  debts  was  a  necessary 
principle  in  the  herital  system  of  the  old  law  ",  and  Heusler  ^ 
justly  asks  what  meaning  ownership  in  collective  hand  by  the 
father  and  sons  could  have  had  "  if  the  father  had  been  able  to 
contract  debts  that  might  compel  the  sons  to  abandon  the  estate 
in  order  to  make  them  good."  With  the  recedence,  however, 
of  the  idea  of  estates  limited  by  the  heir's  indestructible  herital 
rights  ("  Erbgut  ")  this  rule  also  disappeared.  It  still  properly 
found  a  place  in  the  Sachsenspiegel,  which  held  fast  to  the  above 
idea  and  preserved  intact  the  heirs'  rights  in  expectancy  and 
of  co-alienation,  but  it  is  no  longer  to  be  found  in  the  Magde- 
burg law,  in  the.  Deutschenspiegel  or  the  Schwabenspiegel,  nor  in 
any  of  the  later  sources.  In  the  second  half  of  the  Middle  Ages, 
at  least  in  Germany  (in  France  and  Belgium  the  old  restriction  was 
longer  maintained),  the  rule  held  that  the  heir  was  liable  for 
the  obligations  of  the  deceased  with  the  entire  estate,  including 
the  land.  It  was  an  after-effect  of  the  old  idea  of  the  herital  es- 
tate ("  Erbgut  ")  when,  in  the  Liibeck  law,  the  equality  of  "  Kauf- 
eigen  "  (supra,  p.  167)  was  expressly  attributed  to  "  Erbgiiter  ", 
in  order  that  they  might  be  devoted  by  the  heir  to  the  satisfaction 
of  debts  already  contracted  in  reliance  upon  them  (supra,  p.  167). 
The  heir,  however,  was  always  liable  in  theory  with  the  heritage 
only,  and  not  with  his  other  property ;  it  was  only  when  he  incau- 
tiously confused  the  two,  or  otherwise  violated  the  rights  of  credi- 
tors, that  he  lost  this  privilege.  On  account  of  this  "  real  " 
("  sachlich  ")  character  of  the  heir's  liability  he  could  free  himself 
from  every  liability  by  an  abandonment  of  the  heritage  to 
the  creditors. 

(II)  The  Modem  Law.  —  With  the  Reception  the  Roman  prin- 
ciple, which  was  opposed  to  the  Germanic,  became  established 
both  in  the  common  law  and  in  the  regional  systems ;  namely, 
that  the  heir  became  a  personal  obligor  in  the  place  of  thedeceiised, 
and  was  therefore  liable  with  his  own  property  beyond  the  value 
of  the  heritage ;  and  from  this  liability  he  could  only  free  him- 
self by  executing  an  inventory  of  the  heritage.  Only  the  Saxon 
Code,  which  strangely  enough  clung  in  this  point  to  the  native 

»  Op.  cit.,  552. 
707 


§  104]  THE   LAW   OF   INHERITANCE  [Book  V 

law,  and  similarly  the  Liibeck  law,  provided  that  the  heir  should 
be  liable  only  to  the  value  of  the  inheritance.  The  Prussian 
"  Landrecht "  also  started  with  the  principle  of  limited  liability,  but 
it  later  abandoned  this,  recognizing  instead  an  unlimited  liability 
when  an  heir,  after  taking  possession  without  "  reservation  of 
an  inventory  ",  allowed  a  certain  statutory  period  to  elapse  with- 
out preparing  such  and  depositing  it  in  court.  To  this  extent 
the  preparation  of  an  inventory  was  here,  exactly  as  in  the  common 
and  the  French  law,  actually  an  advantage,  since  it  avoided 
the  increased  liability  that  was  otherwise  incurred.  In  the  common 
law  it  was,  further,  a  debated  question  whether  the  heir  of  a  feudal 
estate  ("  Benefizialerbe  ")  was  liable  as  in  the  Justinian  law  to 
the  amount  of  the  estate,  —  so  that  the  sum  for  which  execution 
could  be  had  by  the  creditors  of  the  deceased  against  the  heir's 
individual  property  was  limited  to  the  value  of  the  inheritance,  — 
or  whether,  as  was  assumed  in  the  prevailing  practice,  his  liability 
was  limited  to  the  specific  things  inherited,  so  that  the  creditors 
could  enforce  claims  against  his  private  property  only  so  far  as 
the  value  of  such  things  had  passed  by  the  inheritance  into  his 
private  estate.  Some  of  the  regional  systems  adopted  the  Roman 
viewpoint ;  others,  as  the  Prussian  "  Landrecht  "  and  the  Saxon 
Code,  adopted  the  milder  view  of  the  common-law  practice,  which 
was  in  accord  with  the  Germanic  law.  The  present  Civil  Code  has 
conformed  on  the  whole  to  the  rule  of  the  Prussian  "  Landrecht "  ; 
in  particular,  it  does  not  impose  upon  the  heir  a  liability  beyond 
the  value  of  the  heritage ;  that  is,  it  does  not  impose  an  unlimited 
liability  to  the  extent  of  his  entire  separate  property.  Its  com- 
plicated provisions  have  the  effect  of  creating  provisionally  a 
loosely  defined  condition  of  unlimited  but  limitable  liability, 
which  may  be  definitively  discharged  in  two  ways.  In  case  of  the 
bankruptcy  of  the  decedent's  estate  and  an  official  administration 
thereof,  and  equally  in  case  of  a  so-called  ])lea  of  "  insolvency  " 
("  Erschopfung  ",  poverty,  or  "  Unzulanglichkeit  ",  insufficient 
assets), the  heir  is  liable  only  to  alimited  extent.  On  the  other  hand, 
if  an  inventory  period  is  allowed  to  the  heir  and  he  permits  it 
to  pass  without  presenting  an  inventory,  or  if  he  therein  states 
the  condition  of  the  heritag(^  falsely  and  to  the  damage  of  the 
creditor,  he  becomes  liable  without  limitation. 

§  105.    Plurality  of  Heirs.'  —  (I)    The  Older  Law.  —  Succession 

by  one  heir  among  several  of  the  same  degree  was  unknown  to  the 

Germanic  law,  and  equally  under  the  German  law  the  heritage 

*  See  Ernst  Mayer,  work  cited  on  pp.  585,  104  et  seq. 

708 


Chap.  XIV]  GENERAL   PRINCIPLES  [§  105 

passed  to  the  co-heirs  ("  Ganerben  ")  collectively ;  they  were 
regarded  as  the  successors  of  the  decedent  by  collective  right, 
to  the  same  extent  as  a  single  heir.  The  apportionable  rights 
and  obligations  included  in  the  heritage  also  passed  to  the  co-heirs 
without  division.  Thus  there  resulted  a  community  of  collective 
hand  between  the  co-heirs.  Indeed,  as  has  already  been  explained 
(pp.  139  et  seq.,  150  et  seq.,  234  et  seq.),  these  co-heir  communities  con- 
stituted one  of  the  most  important  and  most  common  applications 
of  the  principle  of  collective  hand.  In  accord  with  that  principle, 
each  co-heir  had  for  his  part  a  share  in  the  collective  estate,  notwith- 
standing that  he  could  not  have  disposed  thereof  alone;  on  the 
other  hand,  he  could  demand  at  any  moment  a  severance  of  the 
same,  since  impartibility  of  the  collective  estate,  indissolubility 
of  the  community,  was,  as  already  seen,  by  no  means  essential 
to  that  principle.  But  just  as  this  freedom  of  partition  led,  as 
is  well  known,  to  the  greatest  political  evils  in  the  field  of  public 
law,  so  also  it  involved  great  dangers  within  the  private  law.  For, 
as  is  justly  said  in  Freidank's  "  Bescheidenheit  "  :  "  Breitiu  eigen 
werdent  smal,  So  man  si  teilet  mit  der  zal  "  ("  large  estates  be- 
come small  if  always  divided  by  the  number  of  children"). 
There  existed  a  partial  check  upon  this  tendency,  though  cer- 
tainly only  a  weak  one,  in  that  a  co-heir's  claim  for  partition 
could  be  excluded  by  contract;  more  effective  was  popular 
custom,  which  at  least  among  the  peasantry  clung  long  and 
generally  to  undivided  management. 

If  a  partition  of  the  heritage  was  made,  then  an  old  rule,  ob- 
served particularly  in  the  Saxon  law,  provided  that  the  older 
should  divide  and  the  younger  should  choose ;  ^  because,  as 
Jacob  Grimm  remarks,  "  to  divide  implies  the  maturer  under- 
standing, to  choose  implies  the  innocence  of  youth."  '^  If  more 
than  two  parts  were  involved  resort  was  usually  had  to  lot.  Im- 
partible things,  and  also  lands,  were  frequently  not  alienated, 
but  instead  abandoned  to  one  of  the  heirs,  who  was  then  bound 
to  compensate  the  others  either  by  payment  of  a  certain  sum  of 
money  or  by  a  rent  charged  upon  the  land  (so-called  "  Erbe- 
gelder  ",  heir-money).  To  determine  the  value  resort  was  had 
to  the  process  of  "  Setzen  zu  Gelde  " ;  that  is,  one  of  the  co-heirs 
set  a  price  at  which  he  would  take  over  the  land  or  leave  it  to  the 
other  heirs  as  they  might  prefer.  The  one  fixing  the  price  was 
frequently  chosen  by  lot,  for  example  in  Hamburg  and  Liibeck ; 
frequently,  however,  particular  heirs  had  a  preferential  right  to 
1  Ssp.,  Ill,  29,  §  2.  a  "Rechtsaltertumer",  I,  660.  , 

709 


§  105]  THE    LAW    OF   INHERITANCE  [BoOK   V 

take  lands  included  in  the  estate  in  return  for  indemnity  given 
to  the  other  co-heirs, — for  example,  in  the  case  of  peasant  hold- 
ings the  sons  before  the  daughters,  in  the  case  of  the  paternal 
house  the  youngest,  and  otherwise  the  eldest  son  {infra,  §§  115- 
11 G).  If  nobody  desired  to  take  over  the  land  it  was  sold,  and 
the  proceeds  were  divided  among  the  heirs. 

In  the  partition  of  the  heritage,  —  the  actual  carrying  out 
of  which  was  ordinarily  left  to  the  heirs,  although  the  public  author- 
ities came  to  intervene  at  an  early  date,  especially  when  there 
were  minor  heirs, — the  children  were  required,  from  the  earliest 
times,  to  throw  into  a  hotchpot  gifts  received  by  them  from  the 
deceased  during  his  lifetime,  such  property  being  reckoned  against 
them  in  the  distribution  in  order  to  accomplish  an  equalization. 
To  be  sure  not  all  gifts  ("  Gaben  "),  —  for  example,  not  presents 
("  Geschenke  ")  made  by  the  father  to  a  child  under  his  mundium 
for  necessities,  such  as  clothing,  weapons,  horses ;  ^  nor  the 
expenses  of  a  daughter's  marriage.  On  the  other  hand,  the 
"  outfit  "  ("  Ausstattung  ")  that  was  given  to  a  child  when  it 
left  the  paternal  househokl  was  the  chief  among  the  gifts  that 
must  be  thrown  into  the  common  estate  for  partition.^  Of  course 
if  a  child's  rights  had  been  entirely  satisfied  by  such  gifts  there 
could  be  no  question  of  a  duty  of  contribution,  since  such  a  child 
did  not  share  in  the  partition  of  the  heritage. 

(II)  The  Modern  Law.  —  The  joint  ownership  in  collective 
hand  which  existed  between  co-heirs  under  the  Germanic  law, 
was  displaced  in  the  common  law  by  the  Roman  co-ownership. 
Each  heir  received  a  fractional  part  of  the  specific  things  included 
in  the  estate ;  contractual  claims  and  debts  ("  Forderungen  und 
Schulden  ")  passed  without  formal  division  in  proportion  to  the 
number  sharing  the  heritage.  In  the  same  way  the  French  and 
Saxon  law  provided  that  all  apportionable  rights  should  be  dis- 
tributed among  the  co-heirs  immediately  upon  the  vesting  of  the 
estate;  in  the  impartible  portions  of  the  same,  on  the  other  hand, 
they  acquired  a  co-ownership  in  undivided  shares  ("  nach  Bruch- 
teilen  "),  so  that  each  co-heir  could  immediately  dispose  of  his 
share  of  the  individual  things  included  therein.  On  the  other 
hand  the  Prussian  "Landrccht",  as  already  mentioned  (p.  150), 
regulated  the  herital  community  as  a  community  in  collective 
hand,  after  the  manner  of  the  Germanic  law.  This  has  been 
followed  by  the  Civil  Code,  thougli  to  be  sure  not  without  recog- 
nizing in  various  respects  the  principles  of  community  in  undivided 
1  Ssp.,  I,  10.  2  Ibid.,  I,  13,  §  1. 

710 


Chap,  XIV]  GENERAL   PRINCIPLES  [§  105 

shares.  Thus,  in  particular,  individual  objects  included  in  the 
estate  can  be  disposed  of,  in  accord  with  the  principle  of  collective 
hand,  only  by  all  of  the  co-heirs  together ;  whereas  alienations  of 
the  entire  estate  can  be  made  independently  by  each  co-heir,  in 
accord  with  the  "  quotal  "  principle,  to  the  extent  of  his  share ; 
only,  in  the  latter  case  his  co-heirs'  rights  of  pre-emption  {supra, 
p,  400)  restrict  his  dispositive  freedom.  As  regards  creditors 
and  debtors  of  the  decedent's  estate,  the  co-heirs  are  liable  and 
entitled  collectively;  on  the  other  hand,  as  respects  their  legal 
relations  among  themselves  during  the  continuance  of  the  com- 
munity, the  rules  of  community  in  undivided  shares  are  applied ; 
so  that  every  co-heir  can  demand  at  any  time  a  dissolution  of 
the  community.  Dissolution  may,  indeed,  under  the  present 
law,  be  prohibited  by  testamentary  disposition  of  the  decedent ; 
but  only  for  a  definite  period  of  time  defined  by  statute,  and  not 
absolutely,  inasmuch  as  such  a  disposition  becomes  ineffective, 
theoretically,  when  thirty  years  have  passed  since  the  vesting  of 
the  inheritance.  In  general,  actual  dissolution  is  left  under  the 
present  law  to  the  co-heirs  themselves ;  but  the  probate  court 
may  intervene  at  their  instance,  and  the  deceased  also  may  regu- 
late the  dissolution  by  testamentary  disposition.  As  respects 
the  duty  of  hotchpot  the  rules  of  the  Roman  institute  of  "  col- 
latio  "  prevailed  in  the  common  law.  Here  again  the  Civil  Code 
has  followed  for  the  most  part  the  earlier  Prussian  law,  which 
in  substantial  agreement  with  other  modern  codes  and  with 
many  special  statutes  subjected  to  hotchpot  whatever  the  child 
had  received  either  as  dowry  ("Aussteuer")  upon  marriage,  or  to 
set  it  up  in  an  independent  household,  trade,  or  other  means  of 
livelihood.  But  whereas  the  Prussian  law  extended  the  duty  of 
hotchpot  to  ordinary  presents  from  the  decedent  when  these 
were  lands  or  invested  capital,  the  Civil  Code  restricts  the  duty 
of  hotchpot  to  such  gifts  as  are  made  as  dowry  or  "  outfit  "  ("  Aus- 
stattung  "),  and  also,  provided  they  exceed  an  ordinary  amount, 
to  gifts  that  are  intended  for  professional  training  or  for  en- 
joyment as  current  income.  Moreover,  the  testator  can  specially 
provide  for  the  extension  or  restriction  of  these  rules.  Under  the 
Civil  Code,  as  under  the  earlier  law,  the  duty  of  hotchpot  always 
affects  descendants  only ;  but  it  a])plies  under  the  Civil  Code,  — 
unlike  the  Saxon  Code,  but  in  agreement  with  the  common  and 
the  Prussian  law,  —  not  only  to  statutory  but  also  to  testamentary 
succession,  whenever  the  statutory  rules  of  succession  are  declared 
by  the  testator  to  be  the  basis  of  his  dispositions. 

711 


§  10(3] 


THE    LAW    OF    INHERITANCE 


[Book  V 


Chapter  XV 


INTESTATE  SUCCESSION' 


§  106. 


§  107. 


Systems     and     De^ees     of 

of  the  half- 

Blood  Relationship. 

blood. 

I.    Stable     and     Unstable 

(3)    Other  systems. 

Sibs.     Narrower  and 

II. 

The  Modern   Develop- 

wider Circles  of  Kin- 

ment. 

dred. 

(1)  Transformations  in 

II.    Systems  and  Degrees  of 

the  common  law 

Kinship. 

of     the     Roman 

(1)   Relationship        by 

law    adopted    at 

generations    (the 

the  Reception. 

parentelic       sys- 

(2) The    regional    sys- 

tem). 

tems. 

(2)   Relationship        by 

(A)  Group   of    the 

stocks 

three-line 

(3)  Relationship        by 

system. 

cousin-groups. 

(B)  Group    of    the 

Succession  of  Kindred  to  the 

parentelic 

Inheritance. 

system. 

I.    The  Older  Law. 

III. 

The  Existing  Law. 

(1)  The  oldest  sources. 

§108. 

Succession  by  Spouses. 

(2)  The  parentelic  sys- 

§ 109. 

Rights  of  Escheat. 

tem. 

I. 

Herital        Rights       of 

(A)   In  general. 

Neighbors. 

(B)  Representa- 

II. 

Feudal    Rights   of   Es- 

tion.        The 

cheat. 

three-line 

III. 

Statutory       Succession 

system. 

Rights  of  Corporate 

(C)  Sex  discrimina- 

Associations and 

tions. 

Foundations. 

(D)  Postponement 

IV. 

The  Right  of   Escheat 

of      brothers 

of  the  Public  Treas- 

and      sisters 

ury. 

§  106.  System  and  Degrees  of  Blood  Relationship.  (I)  Stable 
and  Unstable  Sibs.      Narrower  and  wider  Circles  of  Kindred.  —  In 

the  earliest  times  the  kindred  eoincided  with  the  sohchiry  agnatic 
union  of  the  sib  (supra,  pp.  114  d  seq.).     The  members  of  the  sib, 

'  Dnnz,  "Versuch  einer  historischen  Entwicklung  der  gemeinreoht- 
lichen  Erbfolgeart  in  Lehen"  (1793);  J.  Chr.  Majer,  "Germanions 
Urverfassung "  (1798),  82-105,  and  "Teutsche  Erbfolge  sowohl  (iherhaupt 
als  insbes.  in  Lehen  und  Stammgiiter",  I  (180.5;  a  continuation  of  the 
former  book),  1-139;  v.  <S?/rio»',  "  Darstellung  des  Erbrechts  nach  dem 
Sachsenspiegel "  (1828);  Siegel,  "Die  germanische  Verwandschaftsbe- 
reehnung  mit  besonderer  Beziehung  auf  die  P>benf()Ige"  (1853); 
IFa.s.scr.sc/ik'fccn,  "Das  I'rinzip  der  Successionsordnung  nach  deutschem, 
insbesondcre  sachsisch<'m  Recht"  (1<S00)  ;  Ifniuri/rr,  "Die  Stellung  des 
Saf'Iiscnsi)icgcls  zur  Parciitclcnordiiung"  (ISOO)  ;  /("/re,  "Zur  Fragc  nach 
dem  Prinzip  der  Successionsordnung  im  germanischen  Recht",  in  J.  B. 
gem.  R., VI  (1863),  197  et  seq. ;  Wasserschleben,  "Die  germanische  Verwandt- 

712 


Chap.  XV]  -  INTESTATE  SUCCESSION  [§  106 

that  is  all  persons  who  were  descended  from  a  common  male  ances- 
tor or  "  truncal  father  "  ("  Stammvater  "),  were  "  blood-friends  " 
("  Blutsfreunde  ")  in  consequence  of  such  descent.  No  other  kin- 
ship, through  wives  and  mothers,  existed.  In  earliest  times 
marriages  may  have  been  customary  among  the  primitive  Ger- 
mans, as  among  other  races,  only  between  members  of  the  same 
sib  (endogamous  marriages).  But  when  marriages  with  women 
of  other  sibs  had  also  become  common  (exogamous  marriages) 
the  wives  thereby  became  absolutely  isolated   from  their  own 

schaftsberechnung,  Eine  Replik"  (1864);  Stobbe,  "Die  Erbfolgeordnuug 
naeh  den  Magdeburger  Schoffenspriichen  ",  in  his  "Beitrage",  37-58  ;  Lewis, 
"Zur  Lehre  von  der  Successionsordnung  des  deutsehen  Rechts",  in  Krit. 
Vj.  IX  (1867),  23  et  seq.,  XIV  (1872)  et  seq.,  XXII  (1875),  400  et  seq.; 
Brunner,  "Das  anglonormannisehe  Erbfolgesystem,  Ein  Beitrag  zur 
Gesehichte  der  Parentelenordnung"  (1869) ;  Kayser,  "Das  Erbrecht  nach 
den  Edicten  der  langobardisehen  Konige",  in  ZK  R.  G.,  VIII  (1869), 
466  et  seq.;  Wasserschleben,  "Das  Prinzip  der  Erbenfolge  naeh  den  alteren 
deutsehen  und  verwandten  Reehten"  (1870);  Huber,  "Die  sehweizer- 
ischen  Erbrechte  in  ihrer  Entwicklung  seit  der  Ablosung  des  alten  Bundes 
vom  deutsehen  Reich"  (1872);  v.  Amira,  "Erbenfolge  und  Verwandt- 
schaftsgliederung  nach  den  altniederdeutschen  Reehten"  (1874);  Rosin, 
"  Commentatio  ad  titulum  legis  Salicae  LIX,  'de  alodis'"  (1875) ;  Gierke, 
"Erbrecht  und  Vieinenrecht  im  Edict  Chilperiehs",  in  Z'.  R.  G.,  XII 
(1876),  430  et  seq.;  Rosin,  "Der  Begriff  der  Schwertmagen "  (1877); 
Miller,  "Das  langobardische  Erbrecht",  in  ZK  R.  G.,  XIII  (1878),  68-104; 
Brunner,  "Sippe  und  Wergeld",  in  Z^.  R.  G.,  Ill  (1882),  1-87;  Kohler, 
"Zur  Lehre  von  der  Parentelenordnung"  in  his  " Gesammelte  Abhand- 
lungen"  (1883),  341-367;  "Zwei  Studien  liber  das  sogenannte  Repra- 
sentationsrecht",  in  same,  367-421;  Pnppenheim,  "Zur  Erbfolgeord- 
nuug des  langobardisehen  Rechts",  in  Forsch.  D.  G.,  XXIII  (1883),  616 
et  seq.;  Schanz,  "Das  Erbfolgeprinzip..des  Sachsenspiegels  und  des  Alag- 
deburger  Rechts"  (1883);  Schroder,  "IJber  die  Bezeichnung  der  Spindel- 
magen  in  der  alteren  deutsehen  Rechtssprache  ",  in  Z-.  R.  G.,  IV  (1883), 
1-15;  Opet,  "Die  erbrechtliche  Stellung  der  Weiber  in  der  Zeit  der  Volks- 
reehte",  no.  25  (1888)  of  Gierke's  "Untersuchungen" ;  Frommhold, 
"Beitrage  zur  Gesehichte  der  Einzelerbfolge",  no.  33  (1889)  of  Gierke's 
"Untersuchungen";  Selig,  "Die  Erbfolgeordnuug  des  Schwabenspie- 
gels"  (1890);  Stutz,  "Das  Verwandtschaftsbild  des  Sachsenspiegels  und 
seine  Bedeutung  fiir  die  sachsische  Erbfolgeordnuug",  no.  34  (1890)  of 
Gierke's  "Untersuchungen";  Ficker,  "Untersuchungen  zur  Erbenfolge 
der  ostgermanischen  Rechte"  (4  vols,  and  2  half-vols.,  1891-1904,  in- 
complete); Heymann,  "  Die  Grundziige  des  gesetzlichen  Verwandtenerb- 
rechts  nach  dem  BGB"  (1896);  Vinogradoff,  "Gesehleeht  und  Ver- 
wandtsehaft  im  altnorwegischen  Recht",  in  Z.  Soz.  W.  G.,  Ill  (1898), 
1-43  ;  V.  Dultzig,  "  Das  deutsche  Grunderbrecht",  no.  58  (1899)  of  Gierke's 
"Untersuchungen";  Brunner,  "Kritisehe  Bemerkungen  zur  Gesehichte 
des  germanisehen  Weibererbreehts",  in  Z-.  R.  G.,  XXI  (1900),  1-19; 
Rosen,  "Beitrage  zur  Lehre  von  der  Parentelenordnung  und  Verwandt- 
schaftsberechnung  nach  deutschem  und  osterreichisehem,  jiidischem  und 
kanonischem  Recht",  in  Grunhut's  Z.  Priv.  5ff.  R.  Gegenw.,  XXVIII  (1901), 
341-404;  Caillemer,  "Etudes  sur  la  confiscation  et  I'administration  des 
successions  par  les  pouvoirs  publics  au  moyen  age"  (1901)  ;  Pappenheim 
on  Kjer,  "Dansk  og  langobardisk  Arveret"  (1901),  in  Z-.  R.  G.,  XXII 
(1901),  356-399;  (7d/,  "  Der  Ausschluss  dor  Aszendenten  von  der  Erben- 
folge und  das  Fallrecht",  no.  72  (1904)  of  Gierke's  "Untersuchungen"; 
Gross,  "Medieval  Law  of  Intestacy",  in  "Select  Essays  A.  A.  L.  H.",  Ill, 
723  et  seq. ;   Ernst  Mayer,  op.  cit.  p.  585  supra,  104  et  seq. 

713 


§  l(Xi]  THE   LAW   OF   INHERITANCE  [BoOK  V 

kindred  {supra,  p.  589).  Therefore  the  issue  of  such  marriages 
also  remained  members  of  the  paternal  sib  alone.  So  long  as  these 
solidary  or  stable  ("  feste  ")  sibs  were  the  rule,  the  system  of 
blood  relationship  was  simple ;  it  could  be  determined  only  by 
the  greater  or  less  distance  from  the  common  male  ancestor ;  all 
blood  relations  could  be  arranfjed  in  groups  of  descendants  more 
or  less  removed  from  him,  and  their  relation  to  one  another  and 
to  such  truncal  ancestor  was  easily  determined.  The  matter  be- 
came more  complicated  so  soon  as  the  maternal  kindred  also  found 
legal  recognition,  which  was  the  case  from  the  beginning  of  his- 
torical times  onward.  Thenceforth  children  were  no  longer  born 
merely  into  the  paternal,  but  also  into  the  maternal  kindred ; 
hence  they  became  members  of  all  those  sibs  into  which  the  pa- 
ternal and  maternal  kindred  were  divided.  The  sib  of  the  wife 
became  for  the  next  generation  the  sib  of  the  mother.  Thus  a 
division  resulted  within  the  solidary  agnatic  marriage  relation.^ 
Descent  from  a  common  male  ancestor  was  then  no  longer  alone 
decisive,  but  instead  descent  from  a  particular  pair  of  parents. 
Each  individual  no  longer  belonged  merely  to  that  group  of 
fellows  who  had  with  him  a  common  ancestor  through  a  male  line 
of  ascendants,  but  had  also  his  own  body  of  paternal  and  maternal 
blood  relatives  to  which  belonged  at  the  most,  along  with  himself^ 
his  brothers  and  sisters  of  the  full  blood.  In  this  sense,  to  use 
Picker's  striking  expression,  the  sib  "  changed  "  for  each  individual, 
or  at  least  for  each  group  of  full  brothers  and  sisters.  With  this 
step,  the  concept  of  blood  relationship  in  the  broader  sense 
("  Blutsverwandtschaft  "),  inclusive  both  of  agnates  and  cognates^ 
replaced  the  okler  and  narrower  concept  which  had  so  designated 
the  agnatic  relative  only;  the  unstable  ("  wechselnde  ")  sib  re- 
placed the  solidary  or  stable  ("  feste  ")  sib. 

The  blood  relatives  were  known  as  "  friends  "  ("  Freunde  ", 
"  Holde  ",  "  Gesippen  ",  "  Gatten  ",  "  Gattlinge  ")  ;  among  the 
West  Germans  they  were  also  known  as  "  magen  "  (Old  High  G. 
"mag  ").  No  division  within  the  kindred  seems  to  have  existed 
in  the  earliest  period.  Kinship  was  assumed  so  far  as  common 
blood  could  be  established  ;  a  view  which  long  retained  vitality, 
and  found  exj)ression  for  example  in  the  legal  maxim  "  the  blood 
of  friends  boils  even  though  it  be  but  a  drop  "  ("  Freundesblut 
wallt  und  wenn  es  audi  nur  ein  Tropfen  ist  ")•  On  the  other 
hand,  most  G(Tmaiiic  legal  systems  introduced  divisions  within 
the  blood  kinship  at  nii  early  day,  from  practical  considera- 
*  Vinogradov,  essay  just  cited,  42. 
714 


Chap.  XV]  INTESTATE   SUCCESSION  [§  106 

tions;  although,  to  be  sure,  these  were  everywhere  very  loosely 
drawn. 

The  totality  of  the  blood  relatives,  —  which  may  be  designated 
the  "  Magschaft  "  or  blood-friends  in  the  broad  sense,  as  distin- 
guished from  the  solidary  agnatic  group  of  the  sib,^  —  was  divided 
into  paternal  and  maternal  "  Magen  " ;  the  former  including 
kindred  related  through  the  father  and  the  latter  those  related 
through  the  mother.  The  expressions  "  spear "  ("  Ger-  ", 
"Speer-")  or  "sword"  friends,  and  "spindle"  ("  Spindel- ", 
"Spill-")  or  "distaff"  ("  Kunkel- ")  friends  had  another  sig- 
nificance. Sword-friends  were  the  male  kindred  descended  in  a 
male  line  ("  agnati  masculi  ") ;  spindle-friends,  on  the  other 
hand,  were  all  the  female  kindred  and  also  the  male  descendants 
of  such.  In  the  case  of  the  "  spindle-  "  friends,  therefore,  there 
was  a  peculiar  extension  of  a  name  taken  from  the  occupation  of 
women,  —  and  therefore  intrinsically  intelligible  only  as  applied 
to  them,  —  to  men ;  a  form  of  speech  which  has  persisted  down 
to  the  present  day  in  such  phrases  as  "  female  descendants  " 
("  weibliche  Nachkommenschaft  ") — for  example  in  the  Prussian 
"Landrecht" — as  synonymous  with  "female  line"  ("weibliche 
Linie  ").  Moreover,  the  old  legal  terminology  frequently  applied 
the  expressions  "  sword  ",  "  spear  "  ("  lancea  ")  and  "  spindle  " 
("  Spindel  ",  "  Spinne  ",  "  fusus  ")  to  designate  alike  a  male  or 
female  individual  and  the  entire  body  of  sword  or  spindle 
friends.^ 

Within  the  blood-friends  ("  Magschaft  ")  in  the  broader  sense, 
those  persons  who  belonged  to  the  same  house-community  con- 
stituted a  narrower  and  especially  close  circle,  the  "  Busen  " 
("fathum";  mjpra,  p.  661).  This  included  son  and  daughter, 
father  and  mother,  brother  and  sister,  —  the  "  six  hands  of  the 
sib  "  as  they  were  called  in  the  Frisian  sources.  This  closer 
union  and  differentiation  of  the  "  family  "  in  the  narrowest  sense, 
as  distinguished  from  the  wider  circle  of  kindred,  was  a  conse- 
quence of  the  disintegration  of  the  "  greater  "  or  truncal  family  of 
primitive  times  into  a  group  of  agnatic  sibs,  within  which  in  turn 
the  "  lesser-"  ("  Sender-  ")  families,  —  that  is  those  narrowest 
groups  which  were  united  under  the  mundium  of  a  "  family- 
father  ",  —  became  independent,  solidary  units,  which  increased 

1  With  Brunner,  "Geschichte",  I  (2d  ed.),  113. 

2  "Lex  Angl.  et  Werin. ",  34:  "Tune  demum  hereditas  ad  fusum  a 
lancea  transeat."  Compare  the  French  legal  maxim,  "Le  royaume  de 
France  ne  tombe  pas  en  quenouille  {Spindel)." 

715 


§  106]  THE    LAW    OF   INHERITANCE  [BoOK   V 

in  independence  the  looser  the  sib  became  and  the  more  it  was 
confused  with  the  general  concept  of  blood  relationship  or  kindred. 
In  the  terminology  of  the  old  law,  the  members  of  this 
narrower  circle  of  kindred  were  not  counted  at  all  among  the 
blood-friends  ("  Magen  ")  in  the  proper  sense ;  the  blood- 
friends,  according  to  it,  included  only  those  kindred  who  stood 
outside  of  the  house-community, — the  "  nephews  "  and  "  nieces  " 
in  the  broadest  sense.  Thus,  for  example,  the  Sachsenspiegel 
still  distinguished  among  the  members  of  the  sib — the  "  Sip- 
pegenossen  ",  the  "  Sippezahlen  ",  the  blood  relatives  generally  — 
those  members  thereof  "  who  were  reckoned  among  the  blood- 
friends  (Magen)  ",  namely  those  who  stood  outside  the  nar- 
rowest circle  of  the  house-community.^  This  distinction  between 
the  narrower  circle  of  nearest  related  members,  and  the  wider 
circle  of  blood-friends  (of  the  "  Magschaft  "  in  the  narrower 
sense)  was  of  particularly  fundamental  importance  in  the  oldest 
inheritance  law. 

(II)  System  and  Degrees  of  Kinship.  —  Germanic  law  recog- 
nized various  systems  by  which  the  wider  circle  of  blood  relatives, 
—  the  "  Magschaft  "  or  blood-friends  in  the  broader  sense,  — 
were  organized,  and  according  to  which  their  degree  of  kinship  was 
measured. 

(1)  Relationship  by  generations  (the  parentelic  system).  —  The 
natural  lamination  of  the  agnatic  group  of  the  sib  in  successive 
layers  of  descendants,  or  generations,  was  also  retained  in  the 
systematic  organization  of  the  kindred  composed  alike  of  paternal 
and  maternal  blood-friends.  Within  the  broad  circle  of  the 
"  Magschaft  "  distinct  groups  were  formed,  under  this  system,  of 
all  those  persons  who  were  related  through  their  nearest  common 
male  ancestor  or  their  nearest  ancestral  pair.  It  is  the  custom  in 
modern  legal  science  to  designate  these  groups  as  "  parentela  " 
(also  as  "  Stamme  ",  "  trunks  "  ;  "  Linien  ",  "  lines  "  ;  "  Glicder  ", 
"  branches  ").  The  okl  legal  sources  written  in  Latin,  however, 
employ  the  expression  "  parentela  "  ("  parentilla  ")  in  another 
sense ;  they  designate  by  it  the  kindred  generally,  the  "  Mag- 
schaft "  in  the  broader  sense.  According  to  the  above  system, 
therefore,  the  kindred  of  any  individual  member  of  the  sib  (the 
"  propositus  ")  were  organized  in  distinct  groups  of  his  own  de- 
scendants, the  descendants  of  his  parents,  of  his  grandparents,  of  his 
great-grandparents,  and  so  on.  His  own  descendants,  —  children, 
grandchildren,  great-grandchildren,  etc.,  — constituted  in  relation 

»  Ssp.,  I,  3,  §  3. 
716 


Chap.  XV]  INTESTATE   SUCCESSION  [§  106 

to  himself,  the  first  parenteUc  group,  since  he  was  the  male  ancestor 
of  all  of  them.  The  other  descendants  of  his  parents,  —  in  other 
words,  his  brothers  and  sisters  and  their  descendants,  his  nephews 
and  nieces,  grandnephews  and  grandnieces,  —  constituted  the 
second  parentelic  group.  His  grandparents  and  their  descendants 
in  so  far  as  they  did  iwt  belong  to  the  first  and  second  parentelic 
groups,  —  in  other  words,  his  uncles  and  aunts,  his  male  and  fe- 
male cousins,  and  their  children,  grandchildren,  and  so  on,  —  were 
included  in  the  third  parentelic  group,  inasmuch  as  all  of  them 
were  related  to  him  tlirough  their  grandfathers  or  through  their 
grandparents.  And  thus  the  enumeration  continued.  The  cal- 
culation of  kinship  upon  the  basis  of  this  system  was  very  simple 
and  natural.  In  the  first  place  the  rule  held  that  the  members 
of  a  nearer  parentelic  group  were  more  nearly  related  to  the  "  pro- 
positus "  than  those  of  a  more  distant  parentelic  group,  inasmuch 
as  they  shared  with  him  a  nearer  truncal-father.  His  nephews 
were  more  nearly  related  to  him  than  were  his  uncles ;  for  they 
and  he  had  a  common  ancestor  in  his  father,  but  his  uncle  and  he 
had  such  only  in  his  grandfather.  Within  any  particular  paren- 
telic group,  however,  the  degree  of  kinship  was  measured  by  the 
lesser  or  greater  distance  from  the  truncal-head  or  truncal-pair  of 
that  group.  The  uncle  was  therefore  more  nearly  related  to  the 
"  propositus  "  than  was  the  cousin  ;  for  the  uncle  was  the  son  and 
the  cousin  the  grandson  of  the  common  male  ancestor,  the  grand- 
father of  the  "  propositus."  Unlike  the  Roman,  the  Germanic 
law  did  not  illustrate  degrees  of  kinship  under  the  sjTubol  of  an 
ancestral  tree  with  its  branches,  but  by  the  human  body  and  its 
limbs  and  joints;  and  therefore  they  designated  the  generations 
derived  from  the  truncal  male  ancestor  as  "  knees  "  ("  genu  ", 
"  geniculum  ").  Eike  von  Repgow  has  described  in  a  celebrated 
and  much  debated  passage  of  his  work  how  the  Saxons  applied 
the  figure  of  the  human  body  to  the  calculation  of  kinship,  and 
especially  to  the  determination  of  herital  rights.^  If  two  persons 
alleged  kinship  with  a  third,  the  "  propositus  "  (who  was  ordina- 
rily the  intestate),  they  were  bound  in  the  first  place  to  name 
a  truncal-father  who  was  common  to  them  and  the  "  propositus." 
If  they  named  the  same  truncal-father,  or  at  least  truncal-fathers 
of  the  same  generation,  —  in  other  words  if  both  belonged,  in  rela- 
tion to  the  "  propositus  ",  to  the  same  parentelic  group,  —  then 
in  order  to  determine  which  of  them  was  the  nearer  to  such  com- 
mon male  ancestor,  a  process  of  "  Abstuppen  ",  described  by  Eike, 

»  Ssp.,  I,  3,  §  3. 
717 


§  106]  THE    LAW    OF    INHERITANCE  [BoOK   V 

was  resorted  to ;  that  is,  an  enumeration  of  generations  from  the 
truncal-father  to  the  chiimants.  Eaeh  of  them  took  the  outhne 
of  the  human  body  (the  "  GlieckTbild  "),  placed  the  common 
male  ancestor  at  the  head,  and  tlien  with  the  right  hand  counted 
downward  on  its  left  side  the  generations  intervening  between  him- 
self and  such  truncal-father.  In  so  doing  tlie  cliildren  of  the 
truncal-father  were  placed,  as  the  "  first  sib-group  "  ("  Sippe- 
zahl  "),  at  the  neck;  the  grandchildren,  as  the  "second  sib- 
group",  at  the  shoulder;  and  the  following  generations  succes- 
sively at  the  elbows,  the  wrists,  the  first,  second,  and  third  joint 
of  the  middle  finger ;  the  last  generation  that  was  considered  under 
the  law  of  inheritance,  —  tlie  eighth  sib-group  (or  the  seventh 
group  when  reckoning  only  the  "  Magen  "),  —  was  placed  at  the 
finger  nail,  whence  the  name  "  nail-friends  "  ("  Nagelmagen  "). 
Whichever  of  such  claimants  occupied  a  higher  joint  was  more 
nearly  related  to  the  truncal-father,  and  therefore  also  with  the 
"  propositus  ",  than  he  who  belonged  in  a  lower  group ;  persons 
belonging  at  the  same  joint  were  related  in  equal  degree.  If  the 
claimants  named  truncal-fathers  of  different  joints  ascending  from 
the  "  propositus  " ;  that  is,  if  they  did  not  belong  to  the  same 
parentelic  group,  then  it  follows  from  what  is  said  above  that 
"  the  downward  reckoning  of  the  groups  was  not  necessary ;  if 
it  was  nevertheless  made,  it  had  no  other  value  than  when  evidence 
whose  immateriality  becomes  evident  in  the  course  of  its  presen- 
tation is  nevertheless  given  in  full."  ^  In  this  calculation  of  kin- 
ship, therefore,  the  nearer  parentelic  group  or  "  line  "  ("  Linie  ") 
was  first  determined,  and  then,  within  such  parentelic  group, 
the  lesser  descent  or  interval  from  the  parentelic  head,  —  the 
higher  "  knee  "  or  the  nearer  joint  to  the  head  indicating  the 
nearer  "  degree  "  ;  and  consequently  this  method  of  deter- 
mining kinship  could  also  be  designated  as  a  "  lineal-gradual  " 
scheme.  It  is  clear  that  this  mode  of  calculating  kinship  was 
adapted  to  an  organization  of  kinship  l)y  generations  or  descend- 
ants, such  as  was  usual  from  the  earliest  times.  If  it  was  desired 
to  indicate  numerically,  according  to  this  mode  of  reckoning,  the 
interval  of  kinship  between  two  persons,  and  if  they  were  mem- 
bers of  the  same  generation  below  the  common  ancestor,  the  matter 
could  be  simplified,  for  it  was  then  sufficient  to  indicate  the  inter- 
val once  (so-called  "  reckoning  by  double-joints  ").  For  example, 
it  was  said  that  the  children  of  brothers  and  sisters,  who  were 
members  of  the  second  generation  from  their  common  truncal- 
1  Stulz,  op.  cil.,  just  above,  57. 
718 


Chap.  XV]  INTESTATE   SUCCESSION  [§  106 

father  (their  grandfather),  were  related  in  the  second  degree  to 
one  another;  whereas  in  counting  downward  by  "joints"  from 
the  truncal-father  both  the  hnes  of  descendants  from  him  to  the 
cousins  must  have  been  reckoned,  and  it  must  have  been  said  of 
each  cousin  that  he  stood  in  the  second  generation  from  the  grand- 
father. The  matter  was  not  so  simple  when  the  two  persons  be- 
longed to  different  generations,  that  is  were  unequally  removed 
from  the  common  male  ancestor ;  for  example,  the  one  as  a  grand- 
child of  the  truncal-father  in  the  group  (joint)  of  first  cousins,  the 
other  as  a  great-grandchild  in  that  of  second  cousins.  As  noth- 
ing else  was  here  possible,  the  interval  upon  both  sides  was  indi- 
cated :  "  unus  in  quarta,  alius  in  tertia  progenie  sibi  pertinet  ", 
says  the  Capitulare  Compendiense  of  757  (c.  3),  —  that  is,  they 
are  related  to  one  another  in  the  fourth  and  the  third  generation 
from  the  truncal-male  ancestor.^  This  mode  of  calculating  kinship, 
by  counting  the  generations  descended  from  the  truncal-father, 
passed  from  the  Germanic  into  the  Canon  law;  though  there 
the  example  of  the  Old  Testament  may  possibly  also  have  been 
influential,  since  the  reckoning  of  kinship  by  generations  was  also 
the  old  national  system  of  the  Jewish  people.  At  all  events  it  is 
found  from  the  700  s  onward  in  Anglo-Saxon  and  Frankish,  and 
indeed  in  all  Germanic,  legal  sources  of  the  Church,  and  was  also 
adopted  by  the  Pseudo-Isidorian  Decretals.  This  Germanic- 
Canonic  mode  of  reckoning  differed  in  an  important  respect  from 
the  Roman.  For  the  latter  counted  the  generations  lying  between 
two  persons  and  measured  by  this  the  degree  of  kinship ;  so  that 
brothers  and  sisters  were  related  according  to  the  Roman  system 
in  the  second,  and  not  as  in  the  Germanic  in  the  first,  degree ; 
and  the  children  of  brothers  and  sisters  were  related  in  the  fourth, 
and  not  in  the  second  degree.  The  fundamental  distinction 
between  the  Roman  and  the  Germanic  mode  of  reckoning  has  been 
justly  placed  in  the  fact  that  the  Roman  law  regarded  a  human 
being  as  an  isolated  individual,  as  a  "  persona  ",  and  in  reckoning 
kinship  considered  individual  persons  only  as  links ;  the  Germanic 
law,  on  the  other  hand,  regarded  the  persons  concerned  as  members 
of  units  constituted  of  "  gcnerationes  ",  —  in  other  words  it  took 
the  generation,  from  the  beginning,  as  the  link,  and  counted  only 
its  removal  from  the  ancestor.^  Wherever  the  old  distinction  was 
preserved  between  a  narrower  and  a  wider  circle  of  kindred  there 
resulted  in  the  case  of  the  latter,  —  as  the  passage  above  quoted 
from  the  Sachsenspiegel  shows,  —  a  "  retarded  enumeration  "  : 
1  Heusler,  "Institutionen",  II,  590.  ^  Ibid. 

719 


§  lOt)]  THE   LAW   OF  INHERITANCE  [BoOK  V 

the  first  generation  of  children,  who  occupied  the  neck,  were  not 
blood-friends  ("  Magen  ") ;  on  the  contrary,  the  first  sib-genera- 
tion ("  Sippezahl  ")  tliat  was  reckoned  among  the  blood-friends 
was  the  second  generation  of  descendants,  that  is  the  grand- 
children, who  occupied  the  shoulder ;  the  second  group  of  blood 
friends  ("  Magschaft  ")  was  the  third  generation  of  sib-fellows 
("  Gesippen  "),  that  is  the  grandchildren,  occupying  the  elbow; 
and  so  forth.  And  consequently  the  "  nail-friends  "  ("  Nagel- 
magen  "),  included  in  the  eighth  "  Gesippe  ",  were  the  seventh 
"  Magschaft."  This  retarded  count  was  likewise  adopted  in  the 
Canon  law.  In  time,  however,  it  ceased  to  be  practised  therein, 
and  in  the  later  German  sources  it  was  also  abandoned  ;  for  ex- 
ample, already  in  the  Schwabenspiegel.  Enumeration  by  genera- 
tions in  any  form  was  abandoned  in  many  parts  of  Germany  at 
an  early  day  in  favor  of  the  Roman  enumeration  by  degrees,  which 
eventually  everywhere  acquired  authority.  In  the  law  of  inherit- 
ance, however,  the  former  remained  very  important. 

(2)  Relationship  by  stocks.  —  Another  organization  of  the 
kindred,  namely  in  so-called  stocks  ("  Stamme  ")  and  quarters 
("  Telle  "),  was  associated  with  the  appearance  of  the  unstable  sib 
and  the  inclusion  of  the  cognates  within  the  circle  of  the  blood- 
friends.  Just  as  the  "  Magen  "  were  ordinarily  divided  into 
paternal  and  maternal  blood-friends  according  as  they  belonged 
to  the  paternal  or  the  maternal  sib  (supra,  p.  714),  so  many  legal 
systems  arranged  in  special  groups  those  persons  related  through 
each  one  of  the  four  grandparents,  and  those  related  through  each 
one  of  the  eight  great-grandparents.  This  arrangement,  which 
was  also  common  among  the  North  Germans,  was  maintained 
among  the  Frisians  and  the  Low  Franks  (in  the  law  of  Holland, 
Zealand,  and  Flanders)  down  into  the  Middle  Ages.  The  four 
"  Stamme  "  of  the  grandparents,  —  that  is,  the  descendants  of 
the  four  pairs  of  great-grandparents,  —  were  known  among  the 
Franks  as  "  Vierendeele  ",  and  among  the  Frisians  as  "  Kliifte  " ; 
the  eight  "  Stamme  "  of  the  great-grandparents,  —  that  is,  the 
descendants  of  the  eight  pairs  of  great-grcat-grandparents,  —  were 
known  among  the  Franks  as  "  Achtendeele  "  or  "  half- Vieren- 
deele ",  and  among  the  Frisians  as  "  Fechten  "  or  "  Fiinge.'* 
The  entire  group  of  kindred  was  therefore  also  known  as  the 
"  Achtzahl  "  (Old  High  G.  "  ahta  "  ;  Old  Norse  "  oett  ")•  This 
arrangement  of  kindred  is  seen  with  especial  clearness  in  the  deriva- 
tive systems  of  the  Salic  law  in  connection  with  the  action  for 
homicide  and  in  the  homicide  wergeld,  in  which  connection  four 

720 


Chap.  XV]  INTESTATE   SUCCESSION  [§  106 

members  of  the  group  of  second  cousins  ("  Achtersusterkinder  "  = 
"  Andergeschwisterkinder  ")  frequently  appeared  as  representa- 
tive of  the  four  "  quarters  "  of  the  sib.  It  was  important  in 
the  law  of  guardianship,  inasmuch  as  the  sib's  supervisory 
guardianship  was  exercised  by  the  four  "  Vierendeelen  "  of  the 
"  Magschaft."  Finally,  it  played  a  leading  role  in  the  law  of  in- 
heritance, for  in  default  of  the  first  and  second  parentelic  groups 
the  inheritance  passed  by  virtue  of  the  so-called  "  Schependoms- 
recht  "  (that  is,  the  inheritance  law  of  South  Holland  and 
Zealand,  derived  from  Prankish  origin),  half  and  half  to  the 
blood-friends  of  the  paternal  and  the  maternal  side,  and  in  default 
of  these  to  the  four  "  Vierendeele  ",  and  finally  to  the  eight 
"  Achtendeele."  ^ 

(3)  Relationship  by  cousin-groups.  —  An  arrangement  of  the 
kindred  which  though  descended  from  great  antiquity  has  left 
its  plain  traces  in  the  terminology  of  kinship  that  is  usual  even 
today  in  Romanic  languages,  is  the  reckoning  by  cousin-groups, 
proof  of  which  was  first  given  by  Ficker,^  In  the  Spanish  language, 
which  served  Ficker  as  the  basis  of  his  investigation,  the  uncle  is 
designated  as  "  tio  ",  the  nephew  as  "  sobrino  " ;  but  the  cousin 
as  "  primo  hermano  ",  "  primo  carnal  ",  or  simply  as  "  primo  ", 
—  that  is  to  say,  as  the  "  first  ",  the  "  first  brother."  In  addition 
to  the  "  primo  ",  however,  there  are  recognized  in  Spanish  a  "  se- 
cundo  ",  "  tercero  "  and  "  quarto  hermano  "  ;  the  "  secundo  "  is 
a  second  cousin ;  and  so  on.  The  "  primos  ",  that  is  the  cousins, 
are  grandchildren  of  the  same  grandfather ;  the  "  secundos  "  are 
great-grandchildren  of  the  same  great-grandfather.  To  the  Span- 
ish "  primo  hermano  "  there  corresponds  the  French  "  cousin  " 
("  consanguineus  "  ;  in  Italian,  "  cugino  "),  "cousin  germain  ", 
also  known  simply  as  "  germain  ",  — the  Flemish  "  rechtzweer  "  ; 
to  the  Spanish  "  secundo  ",  the  French  "  cousin  en  autre  "  or 
"  second  ",  and  the  Flemish  "  anderzweer  "  ;  to  the  Spanish  "  ter- 
cero ",  the  French  "  cousin  en  tierce  ",  the  Flemish  "  derdezweer  "  ; 
and  so  on.  These  first,  second,  third,  etc.  cousins  are  always 
equally  removed  from  their  common  male  ancestor ;  they  are  in 
the  same  generation,  or,  if  they  be  thought  of  as  united  by  a  direct 
horizontal  line  instead  of  as  united  by  a  broken  line  passing 
through  the  common  ancestor,  they  stand  upon  the  same  hori- 
zontal line.  When  the  first  cousins,  and  not  the  brothers  and 
sisters,  are  thus  designated  as  "  first  brothers  ",  we  have  here  an- 

>  Brunner  in  Z^.  R.  G.,  ITT.  51. 

2  "  Untersuchungen  ziir  Erljenfolge",  I,  303-86. 

721 


§  106]  THE    LAW    OF    INHERITANCE  [BoOK   V 

other  application  of  the  "  retarded  "  count  above  referred  to 
(p.  720) ;  which  here  also  resulted  from  the  fact  that  the  brothers 
belonji;in£:  to  the  same  household  were  not  reckoned  among  the 
blood-friends  in  the  narrower  sense.  This  mode  of  reckoning  by 
cousin-groups  offered  great  advantages  in  all  cases  where  it  was 
important  to  group  together  all  kindred  included  in  the  same 
generation  with  the  "  propositus  "  ;  as  for  examjjle  all  the  able- 
bodied  men  of  the  sib  who  were  of  approximately  the  same  age, 
and  upon  whom  lay  the  obligation  of  the  blood-feud.  Although 
this  enumeration  by  cousin-groups  is  certainly,  as  already  re- 
marked, very  old,  the  further  contentions  of  Ficker  that  the 
parentelic  organization  was  derived  from  it  as  an  earlier  type, 
and  that  it  can  be  explained  only  by  the  Canonic  system  of  re- 
tarded count,  are  not  supported  by  convincing  proofs. 

§107.  Succession  of  Kindred  to  the  Inheritance.  (I)  The  Older 
Law.  —  (1)  The  oldest  sources.  —  The  scanty  and  in  large  part  enig- 
matic testimony  of  the  sources  of  the  Germanic  and  Frankish 
periods  certainly  justifies  a  confident  assumption  (as  already  men- 
tioned,—  supra,  pp.  694  et  seq.)  that  the  oldest  rule  of  herital 
succession  rested  upon  a  distinction  between  a  narrower  and  a 
wider  circle  of  heirs,  in  accord  with  the  general  historical  develop- 
ment of  the  family,  and  that  this  distinction  continued  to  be 
maintained  after  the  requirement  of  a  common  house-community 
had  been  abandoned  as  regarded  the  next  heirs.  On  the  other 
hand  it  is  only  with  difficulty  that  evidence  can  be  drawn  from 
those  sources  for  an  answer  to  the  question  according  to  what 
rule  the  more  remote  kindred  were  called  to  the  inheritance,  and 
whether  an  identical  ride  was  everywhere  observed  in  this  con- 
nection. The  treatment  under  the  inheritance  law  of  those  in- 
cluded within  the  narrower  kinship-group  also  remains  obscure  at 
many  points.  The  oldest  explicit  evidence  is  the  statement  of 
Tacitus,  in  which  the  children  of  the  deceased,  the  brothers,  the 
father's  brothers,  and  the  mother's  brothers  are  named  as  the 
next  heirs.^  From  this  order  of  succession  it  may  at  least  be  con- 
cluded that  the  inheritance  by  children  from  the  father,  the  omis- 
sion of  sisters  and  sons  of  sisters,  and  the  inclusion  of  the  "  pa- 
truus  ",  are  inconsistent  with  the  assumption  of  a  system  of 
mother-law ; "  whereas  the  mention  of  the  mother's  brother  is 
sufficiently  justified    by  the   new   role  jilayed   by  the  cognates 

1  "Germania",  20. 

2  Brunner,  "Geschichto",  I  (2(1  od.)f  106.  Ernst  Mayor  has  again 
advanced,  very  recently,  another  opinion. 

722 


Chap.  XV]  INTESTATE   SUCCESSION  [§  107 

{supra,  p.  590).  Great  difficulties  are  presented,  further,  —  to 
mention  particularly  only  one  passage,  —  by  the  celebrated  title 
"  De  alodis  "  of  the  "  Lex  Salica."  ^  According  to  the  reading  of  the 
four  oldest  of  the  oldest  group  of  manuscripts,  this  provides  that 
in  the  case  of  the  intestate's  death  without  children  the  mother 
shall  be  heir ;  in  her  absence,  brothers  and  sisters  shall  follow ; 
and  in  default  of  these,  also  the  sisters  of  the  mother.  Again, 
according  to  it  he  shall  take  the  estate  who  is  the  nearest  among 
the  maternal  blood-friends  ("  de  illis  generationibus  ") ;  at  the 
end  it  provides  that  in  the  case  of  lands  no  share  in  the  estate 
shall  inure  to  women,  but  that  the  entire  estate  should  fall  to 
those  who  were  brothers  on  the  paternal  side.  Among  the  many 
explanations  of  this  that  have  been  attempted  down  to  the  present 
time  that  of  Brunner  ^  appears  the  simplest  and  the  most  illumi- 
nating. According  to  him  Title  59  is  by  no  means  an  exhaustive 
statement  of  the  Salic  law  of  inheritance ;  on  the  contrary  it  is 
merely  an  individual  statute  regulating  the  succession  of  the  ma- 
ternal friends  in  the  inheritance.  Consequently  this  Title  can- 
not be  used,  as  has  often  been  attempted,  as  evidence  of  the  exist- 
ence of  mother-law ;  which,  for  that  matter,  is  contradicted  by 
the  fact  that  no  mention  is  made  of  the  mother's  brother.  Inas- 
much as  the  only  question  involved  is  the  herital  succession  of  the 
maternal  blood-friends,  the  paternal  blood-friends  are  not  even 
mentioned  ;  and  likewise  the  part  of  the  chattels  of  the  heritage 
to  which  the  maternal  blood-friends  are  entitled  to  succeed  is 
assumed,  as  something  already  known,  — probably  an  equal  divi- 
sion of  the  chattels  took  place,  even  at  that  early  day,  between 
the  groups  of  paternal  and  maternal  blood-friends,  just  as  in  the 
later  legal  system  of  the  Low  Franks.  That  the  latter  were  com- 
pletely excluded  })y  the  male  line  from  inheritance  of  lands  is 
expressly  mentioned  at  the  end  (§  5),  As  respects  the  maternal 
blood-friends,  however,  this  Title  indicates  a  complete  rule  of 
succession  :  the  mother,  the  brothers  and  sisters  (  who  to  be  sure 
may  also  be  paternal  blood-friends,  or  even  exclusively  such  be- 
cause having  a  common  father,  but  are  here  involved,  along  with 
maternal  half-brothers  and  sisters,  merely  as  persons  having  a 
common  mother,  —  in  other  words  as  maternal  blood-friends),  the 
sisters  of  the  mother,  and  the  remaining  maternal  blood-friends  in 
the  order  of  their  degree  of  kinship.  As  for  the  Salic  order  of 
inheritance  among  paternal  blood-friends,  we  may  assume,  —  in 

1  "Lex  Salica",  59,  1. 

2  In  his  "Kritisehe  Bemerkun^on "  (supra,  p.  713),  12  et  seq. 

723 


§  107]  THE    LAW   OF   INHERITANCE  [BoOK   V 

analogy  to  this  rule  laid  down  for  the  maternal  blood-friends,  and 
in  view  of  the  succession-tables  of  the  Kipuarian  folk-law,^  —  a 
system  according  to  which  first  the  father,  then  brothers  and  sisters 
with  a  common  father,  and  then  the  sisters  of  the  father  succeeded 
a  childless  intestate.  The  kindred  expressly  named  in  these  suc- 
cession-tables all  belonged  to  the  house-community  of  such  child- 
less intestate's  father.  Since  the  deceased  left  no  children,  —  and 
ordinarily  he  was  doubtless  young  and  unmarried,  —  there  fol- 
lowed father  and  mother,  brother  and  sisters ;  and  unmarried  sisters 
of  the  father  and  (a  peculiarity  of  the  PVankish  law)  the  mother  if 
living  as  dependent  members  in  the  households  of  a  brother  or  a 
married  sister  (parents  of  the  deceased).  As  respects  the  order 
of  succession  of  more  remote  paternal  and  maternal  kindred,  the 
Frankish  folk-laws,  like  many  other  sources,  content  themselves 
with  the  laconic  remark  that  in  such  case  the  "  proximior  "  or 
"  proximus  "  shall  be  entitled.  The  order  of  succession  was  there- 
fore assumed  as  something  known. 

Nevertheless,  despite  this  silence  it  can  hardly  be  doubted  that 
the  parentelic  system  in  the  sense  above  explained  was  employed 
very  widely  indeed,  even  in  the  oldest  law,  as  the  guide  in  deter- 
mining the  order  of  inheritance.  The  records  of  the  folk-laws  not 
only  offer  no  evidence  inconsistent  with  the  parentelic  system  but 
may  be  understood,  with  least  straining  of  interpretation,  in  a 
sense  favorable  to  it.^  In  the  Middle  Ages  it  was  doubtless  the 
most  widely  prevalent  system,  so  that  the  theory  which  assumes 
it  to  have  been  the  oldest  and  most  prevalent  system  of  kinship 
and  herital  succession  in  the  Germanic  and  German  law  appears 
to  be  perfectly  supported  by  the  sources,  though  it  is  true  that 
a  long-continued  dispute  has  been  conducted  over  this  hypothesis. 
As  early  as  the  1700  s  the  students  of  the  feudal  law,  in  which  the 
"  lineal-gradual  "  system  prevailed  without  question,  endeavored 
to  establish  the  existence  of  the  system  in  the  older  Germanic 
legal  sources.  "  A  complete  victory  was  won  for  these  Germanic 
views  by  Danz's  really  important  work."  ^  In  later  times,  how- 
ever, this  was  flisplaced  by  the  writings  of  Majer,  which  appeared 
shortly  thereafter ;  he  was  of  the  opinion  that  the  parentelic 
system  could  already  be  read  between  the  lines  of  the  order  of 
succession   indicated   by  Tacitus.-    During  the   1800  s  the  Ger- 

»  "Lex  Ribuaria",  50.  1. 
2  Heuslcr,  "  Institutionen",  II,  597  et  seq. 

»  Rosin  in  the  essay  in  Grunhul's  Z.  Priv.  off.  R.,  XXVIII,  371,  cited 
supra,  p.  713. 

724 


Chap.  XV]  INTESTATE   SUCCESSION  [§  107 

manists  were  divided  into  camps  of  parentelic  and  anti-parentelic 
champions.  Although  in  earlier  times  the  former  theory  was  pre- 
dominant, its  position  was  apparently  seriously  weakened  by  the 
attacks  of  Siegel  and  Wasserschleben ;  scholars  like  Amira  and 
Ficker  declared  against  it,  others  like  Lewis,  Stobbe,  and  Maurer, 
declared  the  question  not  yet  ripe  for  answer.  In  quite  recent 
years,  however,  conditions  have  changed  to  the  advantage  of  the 
parentelic  system,  since  very  recent  investigations,  in  part  due 
to  these  controversies,  have  considerably  strengthened  the  his- 
torical evidences  of  an  early  and  widespread  prevalence  of  paren- 
telic groups. 

(2)  The  parentelic  system.  —  (A)  Ix  general.  —  In  the  later 
Middle  Ages  the  parentehc  system  prevailed,  as  is  demonstrable, 
throughout  a  great  part  of  Switzerland  and  many  parts  of  the  Rhine 
country,  Austria  and  the  Tyrol ;  it  was  assumed  and  explained 
as  existing  law  by  the  authors  of  the  Schwabenspiegel  and  the  legal 
systems  therefrom  derived,  and  most  probably  also  by  Eike  von 
Repgow.i  Further,  as  has  been  recently  proved,  it  prevailed  in 
the  Netherlands,  in  the  greatest  part  of  the  regions  of  the  French 
customary  law,  as  well  as  in  the  Anglo-Norman  law,  whose  prin- 
ciples were  maintained  unchanged  in  England,  as  regarded  succes- 
sion to  immovable  property,  for  more  than  500  years  and  were 
codified  for  the  first  time  in  1833.^  As  the  rule  of  succession  under 
the  feudal  law  it  was  applied  throughout  Germany.  In  the  paren- 
telic system  the  first  heirs  were  the  children  of  the  deceased,  — 
"  the  breast-heirs  "  (the  "  Busen  ",  "  bosom-kindred  "  in  the  nar- 
rower sense),  —  and  their  descendants.  These  were  followed  by 
the  parents  of  the  decedent,  —  the  so-called  "  Schoss  "  ("  lap  ") ; 
and  only  thereafter  by  the  brothers  and  sisters.  This  "  lap- 
succession  "  ("  das  Kind  fiillt  in  der  Mutter  Schoss  "  :  "  the  child 
falls  in  its  mother's  lap  "),  which  is  attested  by  most  of  the  folk- 
laws and  also  by  the  Sachsenspiegel,^  reflected  the  old  view  that 
the  children  were  related  to  their  parents  by  a  closer  blood  bond 
than  to  their  brothers  and  sisters ;  and  moreover  was  required 
by  the  strict  parentelic  system,  since  the  parents  stood  at  the 
head  of  the  second  parentelic  group.  After  the  brothers  and  sisters 
there  followed  their  issue,  in  other  words  the  entire  parentelic 
group  of  the  parents ;  and  after  them,  in  the  third  place,  the 
parentelic  group  of  the  grandparents ;    in  the  fourth  place,  that 

1  Compare  the  passage  from  the  Ssp.,  T.  3,  §  3  cited  on  p.  716. 

2  Heymann  in  IIoUzendorff-Kohlcr,  I,  834. 

3  Ssp.,  I.  17,  §  1. 

725 


§  107]  THE    LAW    OF   INHERITANCE  [BoOK   V 

of  the  great-grandparents ;  and  so  on,  —  always,  in  the  first  pkce, 
the  truncal-pair  of  parents  as  the  heads  of  the  "  hnes  ",  and  then 
their  issue  in  tlie  order  of  removal  from  them.  The  limitation  of 
kinship  that  was  introduced  already  in  Germanic  times  as  respects 
rights  of  inheritance  had  the  effect  of  cutting  off  the  right  to 
succeed  to  the  heritage  at  a  definite  point,  —  though,  to  be 
sure,  a  point  that  was  variously  fixed.  Some  certain  generation, 
counting  downwards  and  upwards  from  the  decedent,  was  the 
last  one  entitled  to  inherit.  According  to  the  Sachsenspiegel  this 
was  the  sixth  sib-generation  ("  Sippezahl  ")  that  was  included  in 
the  blood-friends  ("  Magschaft  "),  namely  the  group  occupy- 
ing the  third  link  of  the  finger  ;  the  "  nail-friends  "  being  no  longer 
heirs.  Of  the  issue  of  the  deceased,  therefore,  the  last  ones  en- 
titled to  inherit  were  the  great-grandchildren  of  a  great-great- 
grandchild (that  is  the  seventh  generation,  or  the  sixth  body  of 
blood-friends,  following  him).  Of  the  collateral  kindred,  it  was  the 
seventh  generation  descended  from  the  great-grandfather  of  his 
great-great-grandfather.  Certainly  an  exceedingly  wide  range  of 
relationship ! 

(B)  Representation.  The  three-line  system.  —  The  paren- 
telic  system  may  be  applied  with  greater  or  with  less  strictness. 
In  particular  there  is  the  question  whether  efi'ect  shall  be  given  to 
the  right  of  representation  (so-called  "  Eintrittsrecht  ",  "  right  of 
entry  ")  ;  that  is,  whether  the  grandchildren  of  the  deceased  shall 
enter  in  the  places  of  their  dead  fathers,  the  sons  of  the  deceased, 
—  whether  they  shall  "  represent  "  the  latter  in  the  division  of  the 
estate.  It  is  debatable  whether  in  the  oldest  Germanic  law  of 
inheritance  there  existed  at  all,  in  addition  to  a  son's  right  of  in- 
heritance, a  similar  right  in  remoter  issue ;  or  whether,  when  the 
decedent  left  only  grandchildren,  in  other  words  children  of  dead 
sons,  these  grandchildren  were  excluded  by  surviving  brothers  of 
the  deceased,  their  great-uncles.  (For  the  parents  of  the  deceased 
would,  as  matter  of  fact,  hardly  be  considered  in  such  cases.)  If 
one  assumes  that  there  originally  prevailed  such  a  preference  of 
brothers  over  grandchildren,  then  one  is  bound  to  derive  this, 
with  Heusler,'  from  the  fact  that  as  an  after-effect  of  the  primitive 
sacredness  of  the  bond  between  brothers  and  sisters  a  grand- 
father felt  less  near  to  his  grandchildren  than  to  his  brothers.  At 
all  events  the  exclusion  of  the  grandchildren  by  the  brothers  must 
have  been  evidence  that  the  idea  of  the  house-community,  of  the 
narrower  circle  of  heirs,  was  still  stronger  than  that  of  succession 
1  "Institutionen",  II,  579  et  seq. 
726 


Chap.  XV]  INTESTATE   SUCCESSION  [§  107 

by  generations.  In  the  time  of  the  folk-laws,  however,  a  right  of 
the  remoter  issue  to  inherit  seems  to  have  been  for  the  most  part 
already  recognized  ;  so  that  not  only  the  children  but  all  the 
descendants  of  the  deceased  were  entitled  to  succeed  as  of  the 
first  line,  and  only  after  them  the  brothers  as  members  of  the 
second  parentelic  group.  Wherever  remoter  descendants  enjoyed 
herital  rights  the  question  might  also  arise  whether  the  grand- 
children should  also  be  granted  the  right  to  represent  their  fathers. 
An  occasion  for  such  succession  (per  stirpes)  was  offered  when  the 
deceased  was  survived  by  a  son  and  the  son  of  another  dead  son, 
—  in  other  words  a  grandson.  Should  the  grandson  be  ex- 
cluded by  the  son,  his  uncle,  or  should  he  succeed  in  place  of  his 
father,  and  so  divide  the  heritage  with  the  other  son,  his  uncle  ? 
The  idea  of  such  a  representation  ("  Eintritt  "),  however  natural 
it  might  be  to  a  system  of  inheritance  based  upon  a  truncal- 
organization  ("  Stammgliederung  "),  was  originally  unknown  to 
Germanic  law.  The  rule  prevailed  :  "  the  nearer  to  the  blood, 
the  nearer  to  the  estate  "  ("  Je  naher  dem  Blut,  je  naher  dem 
Gut  ") ;  that  is,  within  the  parentelic  group  of  the  decedent's 
descendants  inheritance  was  determined  by  the  degree  of  kinship. 
The  danger  of  a  prejudicial  parcellation  of  property,  particularly 
of  the  landed  possessions  of  the  family,  that  was  involved  in  such 
equality  of  sons  and  grandsons  under  the  inheritance  law,  weighed 
heavily  against  such  a  right  of  representation.  Sporadic  attempts 
to  introduce  it  by  way  of  legislation,  such  as  the  statute  issued  in 
595  by  King  Childebert  II  for  the  Austrasian  Franks,^  could  not 
overcome  the  strong  resistance  of  the  common  people.  Especially 
characteristic  was  the  course  of  events  in  the  case  of  the  Saxons. 
This  question  of  the  right  of  representation  was  there  decided  by 
judgment  of  God  in  a  judicial  combat  that  took  place  at  Stela  in 
942,  and  inasmuch  as  the  champion  of  the  grandsons  conquered, 
in  their  favor,  —  but  only  to  the  extent  of  the  case  there  sub- 
mitted for  decision,  namely  in  favor  of  sons'  children  as  against 
other  sons.2  Even  in  later  times  this  restriction  was  strictly 
maintained  ;  the  Sachsenspiegel  recognizes  rights  of  representa- 
tion to  no  greater  extent.^  It  was  only  in  the  course  of  the  Middle 
Ages  that  the  right  of  grandsons  in  the  estate  became  firmly  estab- 
lished, doubtless  in  consequence  of  the  frequent  preferment  of 
grandsons  by  their  grandparents,  by  which  they  were  put  in  the 

1  Childel)ort,  II  decretio,  e.  1  (M.  G.,  Cap.  1.  15). 

2  "Widukindi,  res  gestae  Saxon.",  II,  10. 

3  Ssp.,  I.  5,  §  1. 

727 


§  107]  THE    LAW    OF    IXHERITAXCE  [BoOK   V 

"  shoes  "  of  their  deceased  parents.^  However,  the  right  of  repre- 
sentation did  not  pass  in  Germany  beyond  these  mere  beginnings, 
generally  speaking,  until  acquaintance  was  made  with  the  Roman 
law.  Still  less  was  the  German  law  inclined  to  recognize  rights 
of  representation  in  cases  where  only  remote  descendants  were 
present,  of  the  same  degree  but  the  issue  of  diflPerent  sons  of  the 
deceased ;  for  example,  three  sons  of  a  dead  elder  son  and  two  of 
a  dead  younger  son.  In  this  case  the  estate  was  not,  as  might  be 
supposed,  divided  into  two  parts,  one  being  given  to  the  first 
three  grandchildren,  one-sixth  therefore  to  each,  and  the  other 
half  to  the  other  two  grandsons,  one-fourth  to  each.  On  the 
contrary,  as  the  rule  of  the  Sachscnspiegel  already  cited  shows, 
it  was  divided  per  capita,  one-fifth  being  therefore  given  to  each 
grandson  in  the  case  supposed.  For  the  rule  prevailed 
"  Soviel  Mund,  soviel  Pfund  "  ("  so  many  mouths,  so  many 
pounds  "). 

While  this  preferment  of  descendants  to  all  collateral  relatives, 
which  was  being  painfully  established  with  the  right  of  represen- 
tation, marked  a  victory  for  the  parentelic  system,  the  reverse 
was  true  when  some  legal  systems  made  the  ascendants  a  special 
group  of  heirs,  thereby  making  a  threefold  division  of  these  into 
descendants,  ascendants,  and  collaterals,  —  the  so-called  "  three 
line  system."  Moreover,  in  some  legal  systems  all  ascendants 
were  preferred  to  collaterals,  possibly  because  of  the  special  rela- 
tion of  piety  in  which  the  deceased  stood  in  relation  to  them. 
More  often,  however,  the  opposite  was  the  case :  the  herital  right 
of  ancestors,  which  was  generally  recognized  in  the  Prankish  period, 
was  limited  or  even  wholly  abolished  in  favor  of  the  collaterals, 
their  descendants,  —  at  least  as  regards  certain  portions  of  the 
heritage  (usually  restricted  herital  estates,  "  Erbgiiter  ").  It  was 
not  desired  that  the  property  should  again  come  to  the  hands  of 
ancestors,  who  for  the  most  part  enjoyed  a  secure  economic  posi- 
tion, but  that  they  should  remain  in  younger  hands.  The  heri- 
tage should  pass  downwards,  and  not  upwards :  "  the  property 
runs  as  the  blood  "  ("  Das  Gut  rinnt  wie  das  Blut  "  ;  "  les  propres 
ne  remontent  pas";  "  geen  good  klimt  gaarne  ").  This  prin- 
ciple assumed  various  forms  in  Germany  in  the  regions  of  the 
Prankish  law,  and  also  in  the  Netherlands  and  Planders ;  it  pre- 
vailed in  the  Prench  and  in  the  Anglo-Xorman  law.  Rights  of 
parental  reversion  (so-called  "  Pallrecht  ")  were  usually  asso- 
ciated with  the  exclusion  of  the  ascendants. 

»  Schroder,  "Lehrbueh"  (5th  ed.),  770. 
728 


Chap.  XV]  INTESTATE   SUCCESSION  [§  107 

(C)  Sex  discriminations.  —  The  order  of  succession  was  influ- 
enced to  an  extraordinary  extent  by  the  different  treatment  of  the 
sexes  in  the  inheritance  law.  Even  if  one  starts  with  the  prevail- 
ing theory  that  Germanic  law,  in  accord  with  the  original  military 
character  of  Germanic  civilization  and  the  patriarchal  organization 
of  its  family,  denied  to  women  capacity  to  hold  property  and  there- 
fore capacity  to  inherit  (supra,  pp.  64,  628),  this  rule  had  already 
been  weakened,  by  the  beginning  of  historical  times,  to  a  mere 
preferment  of  males  and  "  male  kindred "  in  the  inheritance 
law.  This,  however,  was  characteristic  of  its  entire  medieval 
development.  The  right  of  parental  reversion  ("  Fallrecht  ", 
"  ius  recadentiae  ")  developed  in  many  medieval  systems,  —  par- 
ticularly in  the  Frankish,  Swiss  and  Frisian,  —  was  an  echo  of  the 
fact  that  rights  of  kindred  related  through  the  mother  were  recog- 
nized in  the  inheritance  law  only  at  a  late  day  as  compared  with 
those  of  members  of  the  old  and  purely  agnatic  union  of  the  sib. 
According  to  this  right  the  lands  of  a  person  who  died  without 
descendants,  or  of  one  who  died  without  ascendants  or  descendants, 
reverted  to  that  side  from  which  they  originally  came ;  although 
frequently,  as  already  mentioned,  with  exclusion  of  direct  ascend- 
ants, —  "  restricted  herital  estates  retrace  the  way  whence  they 
came  "  ("  Erbgut  geht  wieder  den  Weg,  daher  es  gekommen  " ; 
"  het  goet  moet  gaen,  van  dar  het  gekomen  is  ",  "  the  goods  shall 
go  whence  they  came  "  ;  "  paterna  paternis,  materna  maternis.") 
It  was  another  expression  of  the  same  idea,  —  found  equally  in 
the  old  Frankish  legal  systems  and  in  the  medieval  systems  of 
Flanders,  Holland,  Saxony,  Alamania,  and  Friesland,  —  when  a 
quotal  partition  was  made  (usually  an  equal  division  into  halves) 
between  the  paternal  and  the  maternal  blood-friends  of  each 
parentela,  instead  of  an  apportionment  to  the  sides  whence  the 
property  originally  came ;  so  that  the  paternal  and  maternal 
kindred,  though  indeed  treated  equally,  were  nevertheless  treated 
as  special  natural  groups.  This  system  prevailed,  notably,  in 
the  French  coutumes  (so-called  "  fente  "  or  "  refente  "). 

The  unlike  treatment  of  the  sexes  that  had  earlier  prevailed 
resulted,  however,  not  only  in  a  separation  of  the  kindred  related 
through  women  from  the  paternal  blood -friends,  but  above  all  in 
a  postponement  of  women  to  men  of  the  same  degree  of  blood. 
The  folk-laws,  it  is  true,  all  give  to  women  a  herital  right  in  place 
of  the  claim  to  maintenance  that  was  alone  originally  conceded 
them ;  but  all  of  them  with  the  exception  of  the  Visigothic  post- 
poned daughters  to  sons  within  the  narrower  circle  of  heirs,  either  in 

729 


§  107]  THE    LAW    OF    INHERITANCE  [BoOK   V 

all  cases  or  at  least  in  the  case  of  lands  (as  in  the  Lex  Salica)  ^  or  of 
family-estates  (as  in  the  Lex  Uibuaria)  ;-  and  also  frequently  re- 
stricted succession  by  remoter  heirs  to  the  sword-friends,  that  is  to  the 
men  of  the  male  line.  On  the  other  hand,  a  woman  of  nearer  degree 
later  came  to  be  preferred  to  a  remoter  male,  in  accord  with  the 
parentelic  theory,  as  the  Sachsenspiegel,  for  example,  shows.^  In 
the  wider  circle  of  heirs  sex  completely  lost  its  one-time  influence. 
Whereas  in  rural  regions  the  postponement  of  daughters  to  sons 
as  respects  inheritance  of  lands  was  maintained  not  only  through- 
out the  Middle  Ages  but,  in  the  inheritance  of  particular  kinds  of 
estates,  down  into  modern  times  {infra,  §§  114-16),  in  the  cities 
the  equality  of  sons  and  daughters  under  the  inheritance  law  was 
established  already  in  the  Middle  Ages. 

(D)  Postponement  of  brothers  and  sisters  of  the  il\lf- 
BLOOD.  —  INIany  medieval  legal  systems  postponed  brothers  and 
sisters  of  the  half-blood  in  various  ways  to  those  of  the  full 
blood,  in  accord  with  the  unlike  treatment  of  paternal  and  ma- 
ternal blood-friends.  For  example,  according  to  the  Sachsen- 
spiegel persons  of  the  half-blood  were  postponed  an  entire  degree,^ 
and  according  to  other  legal  systems  a  half  degree,  to  the  full 
blood.  Some  legal  systems  gave  to  brothers  and  sisters  of  the 
half-blood  only  half  the  share  of  the  heritage  that  fell  to  those  of 
the  full  })lood ;  they  permitted  them  to  inherit,  not  like  the  latter 
"  with  both  hands  ",  but  only  "  with  one  hand." 

(3)  Other  systems.  —  The  peculiarities  above  mentioned  were 
mere  "  variations  of  the  parentelic  system  ",^  which,  while  in- 
deed creating  a  great  complexity  in  the  legal  systems  recognizing 
them,  nevertheless  did  not  affect  their  substantial  basis.  But 
there  existed  in  the  Middle  Ages  a  few  legal  systems  in  which  there 
was  observed  a  system  of  succession  irreconcilable  with  the  paren- 
telic order.  There  are  here  in  question  certain  town  laws  of 
Lower  Germany,  —  among  others  those  of  Dortmund,  Goslar, 
Hamburg  and  Eisenach  ;  also  certain  Swiss  dooms  and  Frisian 
statutes  and  Scandinavian  legal  systems;  and,  above  all,  the 
judicial  practice  of  the  Magdeburg  skevins.     There  was  here  no 

1  "  Lex  Salioa",  50,  5.  CJ.  p.  723  supra.  Chilpcrioh  was  the  first  to  pfive 
rights  of  succession  to  daughters,  brothers,  and  sisters  of  the  deceased  in 
lands,  in  default  of  sons ;  so  that  an  escheat  to  the  commune  took  place 
only  in  the  absence  of  all  these  heirs,  —  Edictum  Chilperici  (561-584),  c. 
3  (M.  G.,  Cap.  1,  8). 

2  "L.  Rib.",  50.  Cf.  p.  724  supra. 
'  Ssp.,  I.  17,  §  1.  Cf.  p.  725  supra. 
*Ssp.,  II,  20,  §  1. 

^  Gierke  in  Hollzendorff-Kohler,  I,  549. 

730 


Chap.  XV]  INTESTATE   SUCCESSION  [§  107 

principle  of  successive  rights  of  parentelic  groups.  Many  of 
these  legal  systems  preferred  collaterals,  particularly  brothers  and 
sisters,  —  ix.  members  of  the  second  parentelic  group,  —  to  more 
remote  descendants,  particularly  grandsons,  —  i.e.  members  of 
the  first  parentelic  group ;  and  all  treated  as  equals  the  collateral 
kindred  of  different  parentelic  groups,  for  example  cousins  (third 
parentelic  group)  and  grandsons  of  brothers  and  sisters  (second 
parentelic  group),  or  children  of  cousins  (third  parentelic  group) 
and  children  of  great-uncles  (fourth  parentelic  group).  There 
may  be  here  involved  in  part  an  after-effect  of  the  old  distinction 
between  the  narrower  and  the  wider  circle  of  heirs,  or  in  part  an 
influence  of  the  Roman  law  that  was  already  felt;  which  last 
was  doubtless  furthered  by  the  "  arbor  consanguinitatis  "  adopted 
in  the  Canon  law  and  known  in  Germany  from  the  1300  s  onward. 
But  however  one  may  explain  these  peculiar  facts,  at  all  events 
this  system  of  succession,  —  which  in  the  last  analysis  "  appears 
as  a  pure  '  gradual  '  system,  modified  by  the  peculiar  position  of 
the  parents,  the  brothers,  and  the  children  of  the  decedent  in  the 
'  neck  '  of  the  Saxon  skeleton  of  kinship  'V  —  was  unimportant 
as  compared  with  the  parentelic  system,  if  for  no  other  reason 
than  the  limited  area  of  its  authority. 

(II)  The  Modern  Development.  (1)  Transformations  in  the 
common  law  of  the  Roman  laic  adopted  at  the  Reception.  —  The 
Justinian  system  of  intestate  succession  gave  the  first  right  to 
inherit  to  descendants ;  the  second  to  ascendants,  brothers  and 
sisters  of  the  full-blood  and  children  of  the  latter;  the  third  to 
brothers  and  sisters  of  the  half-blood  and  their  children ;  and  the 
fourth  to  all  other  cognates  in  the  order  of  their  degree  of  kin- 
ship. Despite  some  fundamental  difterences,  it  possessed  many 
similarities  to  the  prevailing  parentelic  system ;  for  example,  the 
unqualified  preference  of  descendants,  the  postponement  of  col- 
laterals of  the  half-blood,  the  equal  division  of  the  estate  among 
paternal  and  maternal  ascendants  of  the  same  degree  ("  divisio 
in  lineas  ")  that  took  place  in  case  of  pure  ascendant  succession, 
and  the  composition  of  the  second  class  of  heirs,  which  was  at 
least  remotely  similar  to  and  reminds  one  of  the  "  three-line- 
system."  ^  These  similarities  were  influential  in  procuring  the 
acceptance  of  the  Roman  law  of  intestate  inheritance,  although 
not  without  strong  opposition.  Its  triumph  was  attributable 
fully  as  much,  however,  to  the  circumstance  that  it  possessed,  in 
addition  to  the  above,  certain  qualities  that  satisfied  the  special 
1  Heymann,  "Grundziige"  (supra,  p.  713),  16.  =  Ibid.,  27. 

731 


§  107]  THE    LAW    OF    INHERITANCE  [BoOK   V 

needs  of  the  time  and  gave  full  effect  to  ideas  theretofore  present 
in  the  Germanic  law  only  in  rudimentary  form.  Among  these,  in 
particular,  was  the  right  of  "  representation  ",  which  took  account 
of  the  fact  that  not  only  the  heir  but  his  entire  line  were  economi- 
cally enriched  by  his  inheritance,  and  which  was  now  generally 
applied.  Hence  it  was  that  even  the  legislation  of  the  Empire 
interfered  —  a  rare  case  —  to  secure  in  this  matter  the  adoption 
of  the  alien  law.  Rights  of  representation,  after  having  been 
provisionally  adopted,  at  least  as  respects  grandchildren,  at  the 
Diet  of  Freiburg  in  1498,  —  although  still  repudiated  on  the 
authority  of  the  Sachsenspiegel  as  respected  first  cousins,  —  were 
introduced  at  the  Diet  of  Augsburg  in  1500  for  descendants  gener- 
ally, and  at  the  Diet  of  Worms  in  1521  for  the  children  of  brothers 
and  sisters  (first  cousins)  along  with  these  latter.  True,  these 
resolutions  of  the  Diet,  notwithstanding  their  observance  was 
impressed  upon  the  estates  of  the  Empire  by  the  edict  of  the 
"  Reichsregiment  "  of  1521,  by  no  means  acquired  authority 
everywhere  in  the  Empire ;  in  Saxony,  particularly,  their  enforce- 
ment was  resisted,  and  the  Diet  of  Speier,'in  1529,  was  obliged 
to  recognize  the  partition  "  per  capita  "  of  the  German  law  in 
the  case  of  succession  by  first  cousins.  Accordingly,  partition 
per  stirpes  ("  Stammteilung  ")  was  permitted  only  when  persons 
of  unequal  kinship  (for  example  brothers  and  sisters  and  the  chil- 
dren of  deceased  brothers  and  sisters)  inherited  together ;  and  this 
involved,  in  fact,  the  triumph  of  a  principle  of  Germanic  law, 
although  of  course  contemporaries  were  not  conscious  of  this. 
They  justified  these  as  well  as  other  notable  deviations  from 
Roman  law  with  the  theory  (which  originated  in  Italy  and  was 
now  acquiring  supremacy  also  in  Germany)  that  the  right  of 
representation  was  a  succession  "  ex  alieno  iure  "  ;  that  the  repre- 
sentative succeeded  only  as  the  heir  of  the  person  he  represented, 
or  at  least  by  virtue  of  the  hitter's  right, — a  baseless  fiction. 
Inasmuch  as  some  of  its  consequences  qualified  the  rules  of  the 
Roman  law,  its  effect  was  to  fortify  the  native  against  the  alien 
system.  In  still  other  respects  there  were  continued  in  Germany, 
in  the  theory  and  practice  of  the  common  law,  the  endeavors  to 
assimilate  the  Justinian  law  to  the  principles  of  the  parcntelic 
system  which  had  been  earlier  initiated  in  Italy.  In  particular, 
an  attempt  was  made  to  transform  the  second  Roman  class  of 
heirs  into  the  second  pareiitelic  group  of  the  Germanic  law; 
namely,  on  one  hand  by  including  in  it  not  only  the  children  but 
also  the  more  remote  descendants  of  brothers  and  sisters,  and  on 

732 


Chap.  XV]  INTESTATE   SUCCESSION"  [§  107 

the  other  hand  by  excluding  from  it  the  more  remote  ascendants, 
including  the  grandparents ;  notwithstanding  that  this  procedure, 
as  respects  the  last  point,  directly  contradicted  the  clear  words 
of  the  118th  Novel.  In  the  same  way  an  attempt  was  made  to 
extend  the  equal  division  of  the  heritage  between  paternal  and 
maternal  kindred  of  the  same  degree,  prescribed  by  Justinian  in 
the  case  of  succession  by  ascendants,  so  that  this  division  should 
be  made  not  merely  once,  but  should  be  repeated,  as  in  the  case 
of  the  French  "  refente  ",  with  respect  to  more  remote  ascendants. 
In  case  of  pure  ascendant  succession,  however,  the  Romanistic 
practice  frequently  retained,  in  addition,  a  division  of  the  estate 
among  the  "  sides  "  whence  the  property  originally  came,  in  accord 
with  the  Germanic  law.  The  irreconcilability  of  these  Germanic 
hybrids  with  the  pure  Roman  law  was  first  perceived  by  the  His- 
torical School  of  the  1800  s.  At  the  same  time,  even  in  the  face 
of  the  proofs  it  presented,  two  of  these  "  unhistorical  "  and  there- 
fore "  erroneous  "  variations  proved  capable  of  survival  in  prac- 
tice; namely,  partition  per  capita  among  first  cousins  and  the 
complete  equality  of  first  cousins  with  ascendants ;  that  is,  even 
when  no  brothers  and  sisters  of  the  decedent  were  living. 

(2)  The  regional  systems.  —  The  circumstance  that  Territorial 
legislation,  with  few  exceptions,  —  such,  for  example,  as  the 
Brandenburg  "  Constitutio  Joachimica  "  (which  adopted  the 
Justinian  law  in  its  pure  form),  —  was  considerably  influenced  in 
most  points  by  Germanic  ideas,  was  of  still  greater  importance  in 
preserving  the  vitality  of  the  Germanic  rules  than  was  the  modi- 
fication of  the  Roman  law  imdertaken  in  the  common  law.  These 
particularistic  systems,  as  well  as  the  judicial  practice  of  the  com- 
mon law,  attempted  above  all  to  adapt  the  second  Justinian 
class  of  heirs  to  the  Germanic  law.  Two  groups  of  legal  systems 
are  distinguishable :  the  one  adopted  the  three-line-system,  the 
other  the  parentelic  system.^ 

(A)  To  the  FIRST  GROUP,  which  may  be  designated  the  Saxon, 
there  belonged  a  large  number  of  Saxon  legal  systems.  They 
followed  the  judicial  practice  of  the  common  Saxon  law,  accord- 
ing to  which,  unlike  the  Sachsensplegel  and  the  judicial  practice 
of  Magdeburg,  all  ascendants,  and  later  all  collaterals,  were  en- 
titled to  inherit  sim])ly  according  to  their  degree  of  kinship. 
Similarly,  most  of  the  modern  Saxon  statutes  adojrted  a  system 
(which  was  also  introduced  in  the  IGOO  s  into  the  duchy  of  Magde- 
burg) according  to  which  four  classes  were  successively  entitled 
*  Heyviann,  "  Grundziige  "  (supra,  p.  713),  16. 
733 


§  107]  THE    LAW    OF   INHERITANCE  [BoOK   V 

to  the  succession,  —  first  tlic  descendants,  then  the  ascendants, 
thereafter  the  brothers  and  sisters  and  their  children  of  the  whole- 
and  the  half-blood,  and  finally  all  other  collateral  kindred. 

(B)  The  SECOND  group  of  regional  systems  adopted  the  second 
course,  namely  the  transformation  of  the  second  class  of  the  Jus- 
tinian system.  They  excluded  from  this  the  more  remote  ascend- 
ants, and  added  to  the  children  of  brothers  and  sisters  the  remoter 
descendants  of  the  latter;  the  result  was  the  second  parentelic 
group.  This  arrangement,  which  preceded  recognition  of  the 
pure  parentelic  system,  is  already  to  be  found  in  some  of  the 
older  town  codifications  (as  in  the  Hamburg  statutes  of  1603,  the 
Breslau  statutes  of  1577,  and  the  Liibeck  codification  of  15SG)  ; 
but,  above  all,  it  was  adopted  in  the  great  codifications  of  the 
modern  period. 

It  received  particularly  clear  expression  in  the  Prussian  Land- 
recht,  whose  provisions  were  framed  by  its  drafters  with  con- 
scious reference  to  the  Germanic  law.  Under  it  the  kindred  in- 
herited in  five  classes.  The  first  was  constituted  of  descendants, 
with  strict  application  of  the  principle  of  representation ;  the 
second,  of  the  parents;  the  third,  of  the  brothers  and  sisters  of 
the  full  blood  ;  the  fourth,  of  brothers  and  sisters  of  the  half- 
blood  and  their  descendants  in  conjunction  with  the  ascendants  of 
higher  degrees,  in  such  manner  that  one-half  of  the  estate  passed 
to  the  brothers  and  sisters  of  the  half-blood  and  their  descendants, 
the  other  to  the  higher  ascendants  according  to  the  degree  of  their 
kinship ;  the  fifth,  of  the  more  remote  collateral  kindred,  strictly 
according  to  the  degree  of  their  relationship.  Here,  consequently, 
the  first  and  the  second  parentelic  groups  were  regulated  in  strict 
agreement  with  the  Germanic  law  save  that  the  brothers  and 
sisters  of  the  half-blood  were  not  included  in  tliem,  although  they 
were  preferred  to  all  other  collateral  kindred.  In  other  respects  the 
system  of  the  "Landrecht"  was  Roman.  "  The  'Landrecht'  was 
the  first  German  regional  legal  system  that  rei^udiatod  the  erro- 
neous conception  of  succession  per  stirpes  as  a  riglit  of  succession 
'  alieno  iure  ',  applying  the  pure  Roman  principle  of  the  unity  of 
the  stock  ('  Stammeinheit  ')  to  the  entire  body  of  the  decedent's 
descendants  and  his  brothers  and  sisters.  Further,  the  distinction 
between  the  paternal  and  the  maternal  lines  exercised  no  influence ; 
not  only  was  the  *  ius  recadentiae  '  expressly  repudiated,  but  even 
the  Justinian  '  divisio  in  lineas  '  was  done  away  with  among 
descendants,  so  that  ancestors  of  equal  degree  share  per  capita."  ^ 
*  Heymann,  "  Grundziige  "  {supra,  p.  713),  38. 
734 


Chap.  XV]  INTESTATE    SUCCESSION  [§  107 

The  Code  Civil  adopted  a  system  akin  in  its  principles  to  the 
Prussian  Law.  Its  classes  are :  1st,  descendants ;  2d,  parents, 
and  brothers  and  sisters  with  all  their  issue;  3d,  ascendants; 
4th,  collaterals.  But  (among  other  things)  it  retained  in  large 
measure  the  distinction  of  the  Germanic  law  between  the  pa- 
ternal and  the  maternal  kindred,  as  in  the  old  French  "  fente." 

Whereas  these  codes  applied  the  principles  of  the  parentelic 
order  to  the  nearer  kindred  only,  and  therefore  continued  in 
theory  to  represent  Romanistic  systems  more  or  less  considerably 
modified  in  the  sense  of  Germanic  law,  the  Austrian  legislation 
(if  we  disregard  a  few  earlier  particularistic  statutes,  —  the  in- 
heritance statute  of  Joseph  II,  of  1786,  and  the  Civil  Code,  which 
agrees  with  that)  has  led  the  way  in  establishing  the  parentelic 
system  for  the  more  remote  kindred  as  well,  partly  under  the  in- 
fluence of  the  law  of  nature,  and  partly  following  the  example  of 
the  feudal  law;  so  that,  under  it,  it  is  only  after  the  complete 
exhaustion  of  one  parentelic  group  that  the  members  of  the  fol- 
lowing group  have  their  turn. 

The  inheritance  law  of  the  kingdom  of  Saxony  was  regulated 
in  agreement  with  the  Austrian  Code,  first  by  an  edict  of  1829 
and  later  by  the  Civil  Code.  But  here  the  preferment  given 
in  the  older  common  Saxon  law  to  all  ascendants  was  retained. 
The  Saxon  order  of  succession  was  adopted  in  some  other  Saxon 
states  (Weimar,  Altenburg,  Gotha,  Reuss).  A  similar  system 
prevailed  in  Frankfort,  Bremen,  and  in  parts  of  Schleswig-Holstein. 

(Ill)  The  Existing  Law.  —  The  present  Civil  Code  has  given 
the  parentelic  system  the  authority  of  common  German  law, 
although  not  with  the  same  consistency  as  was  observed  in  the 
Austrian  Civil  Code ;  for  it  restricts  the  right  of  representation, 
which  the  Austrian  Civil  Code  extended  to  all  parentelic  groups, 
to  the  first  three  orders  (descendants,  parents  and  their  descend- 
ants, grandparents  and  their  descendants).  Succession  takes 
place  in  all  of  these  according  to  stocks  ("  Stammen  "),  and  in 
the  second  and  third  according  also  to  lines  ("  Linien  ").  In  the 
fourth  (great-grandparents  and  their  descendants)  and  the  fol- 
lowing orders,  however,  which  include  all  the  more  remote  ances- 
tors of  the  deceased  and  their  descendants,  succession  is  accord- 
ing to  the  nearness  of  the  degree  of  kinship ;  there  is  no  limit  to 
the  right  of  inheritance.  The  Swiss  Civil  Code,  on  the  other 
hand,  has  once  more  applied  the  right  of  representation  with  entire 
consistency,  and  to  all  stocks  {"  Stammlinien  ")  whatever.  But 
on  the  other  hand  it  has  introduced  a  limitation  upon  the  statu- 

735 


§  107]  THE    LAW    OF    INHERITANCE  [BoOK   V 

tory  right  of  inheritance:  the  fourth  parenteUc  group,  the 
stock  of  the  great-grandparents,  no  longer  enjoys  any  statutory 
right  of  inheritance  ;  the  commonwealth  takes  its  place.  In  Ger- 
many also  there  exists  at  present  an  intention  to  introduce  in 
favor  of  the  state  a  limitation  upon  statutory  rights  of  inheritance. 
§  108.  Succession  by  Spouses.  —  The  fact  that  many  Germanic 
legal  systems  gave  to  a  sur\iving  spouse  a  right  of  inheritance,  at 
times  extensive,  in  the  property  of  the  dead  consort  has  already 
been  mentioned  in  the  account  of  the  law  of  the  marital  property 
(supra,  pp.  650  et  seq.,  008),  and  therefore  requires  here  only 
brief  mention.  The  provisions  of  the  Roman  law,  which  accorded 
herital  rights  to  spouses  only  to  an  extent  exceedingly  limited, 
were  adopted  in  only  a  few  regions.  For  even  where  the  Roman 
dotal  law  was  recognized  in  other  respects,  the  local  statutes 
ordinarily  gave  the  surviving  spouse  a  right  of  inheritance  along 
with  the  other  kindred  of  the  deceased,  —  frequently,  to  be  sure, 
only  after  them.  It  was  a  rare  exception  when  the  law  of  Mark 
Brandenburg  wholly  denied  such  a  right  of  inheritance,  giving  to 
the  spouse  instead  of  this  a  mere  right  to  convert  into  a  general 
community  of  goods  mortis  causa  an  administrative  community 
that  existed  during  the  continuance  of  the  marriage,  in  which  case 
the  surviving  spouse  received  half  of  the  entire  property  derived 
from  both  sides.  Most  of  the  regional  legal  systems  clung  to 
the  old  view  "  that  the  sur\'iving  spouse  ought  to  receive  more 
than  his  or  her  heirs  would  have  received  had  such  sur\'iving 
spouse  died  first."  ^  The  right  in  the  estate  given  to  such  sur- 
vivor, —  which,  since  it  was  not  supported  by  the  common  law 
but  by  regional  statutes,  was  called,  as  already  mentioned,  a 
"  statutory  portion  "  ("  successio  coniugum  statuaria  "),  —  varied 
greatly  in  extent.  Sometimes  it  referred  to  a  certain  quota  of  the 
estate,  sometimes  to  things  of  a  particular  kind,  especially  chattels. 
Often  it  consisted  of  a  right  of  usufruct  in  all  the  property  of  the 
dead  spouse  or  in  a  fraction  thereof;  indeed,  even  the  quota  of 
the  community  property  that  was  set  apart  for  the  surviving 
spouse  under  the  rules  of  marital  i)roperty  was  sometimes,  although 
incorrectly,  conceived  of  as  an  interest  of  inheritance.  'Many 
statutes  went  so  far  as  to  declare  tlie  survi\-()r  sole  heir  of  the 
decedent  (Liineburg,  Ilildesheim,  I'uldn,  X(")rdlingen).  Most 
legal  systems  gave  to  the  spouse  a  right  of  inlicritance  graduated 
according  to  the  presence  of  other  heirs ;  the  proportions  intro- 
duced by  the  Prussian  "  Landrecht  "  have  already  been  referred 
*  Gierke  in  H oltzendorJf-Kohlcr,  I,  550. 
730 


Chap.  XV]  INTESTATE   SUCCESSION  [§  109 

to  (supra,  p.  G51).  Whereas  the  Saxon  code  adopted  a  similar 
although  a  simpler  rule,  the  Code  Civil  permitted  a  spouse  to 
take  the  inheritance  only  when  the  deceased  left  no  kindred  en- 
titled thereto.  Many  legal  systems  declared  the  statutory  por- 
tion to  be  an  irrevocable  herital  right,  —  in  other  words  a  right 
to  a  compulsory  portion ;  others  ascribed  such  compulsory  char- 
acter to  a  quota  of  the  intestate  property  only ;  still  others,  like 
the  Austrian  Civil  Code,  recognized  no  compulsory  portion  what- 
ever, but  merely  an  absolute  ("  fester  ")  right  to  a  suitable  main- 
tenance. The  Civil  Code  has  conceived  of  the  surviving  spouse's 
statutory  right  of  inheritance,  which  is  independent  of  the  law  of 
marital  property,  as  a  collective  right  of  succession.  The  surviv- 
ing spouse  receives  when  there  is  issue  a  fourth,  and  in  conjunc- 
tion with  kindred  of  the  second  order,  or  in  conjunction  with 
grandparents,  a  half  of  the  estate ;  excluding  other  kinsmen, 
however,  as  sole  heir.  The  half  of  the  estate  is  an  irrevocable 
compulsory  portion,  or  is  revocable  only  for  reasons  which  would 
justify  divorce.  The  Swiss  Civil  Code  treats  the  surviving  spouse 
far  more  favorably  still.  If  there  are  no  descendants  he  or  she 
receives  the  entire  inheritance,  one  part  thereof  in  ownership  and 
another  part  for  usufruct ;  the  relative  amount  of  these  two  por- 
tions being  determined  by  the  stock  ("  Stammlinie  ")  that  is 
entitled  to  the  inheritance  in  conjunction  with  the  survivor.  If 
adult  issue  are  present  the  survivor  receives,  as  he  may  choose, 
either  a  fourth  of  the  estate  in  ownership  or  a  half  in  usufruct. 

§  109.  Rights  of  Escheat.^  —  In  the  absence  of  an  heir  statu- 
torily entitled  there  were  recognized  in  the  medieval  law  certain 
rights  of  escheat.  These  represented,  in  part,  consequences  of 
the  original  collective  ownership  of  blood  or  local  groups ;  in  part 
they  rested,  like  seignorial  rights  of  escheat,  upon  relations  of  real 
or  personal  dependence;  and  still  others  appeared  as  statutory 
herital  rights  of  corporate  associations  ("  Korperschaften  ")  in  the 
property  of  their  members.  The  most  important  role  was  played 
by  the  general  right  of  escheat  of  the  crown  or  state. 

(I)  Herital  rights  of  neighbors  ("  vicini  "),  that  is  of  the  com- 
mune, in  lands  owned  by  mark  associations  ("  IMarkenverbande  "), 
which  are  evidenced  by  the  oldest  Prankish  sources,  were  a  con- 
sequence of  the  original  collective  ownership  of  the  sib  after  this 
became  a  local  group.     As  already  mentioned  (supra,  p.  730),  this 

1  Tomascheck,  "Das  Hcimfallsredit,  mit  einem  Rochtsgn^itachten  iiber 
das  Heimfallsreeht  dor  Stiidtc  Wien  urid  Prag:"  (1S82)  ;  Bar,  "Das 
Kadukreeht  der  Stadt  Danzig",  in  Z.  Westpreus.  G.  Ver.,  LI  (1909),  21-52. 

737 


§  109]  THE    LAW    OF    INHERITANCE  [BoOK   V 

right  took  effect,  according  to  the  "  Lex  SaUca  ",  when  the  de- 
ceased left  no  sons.  The  edict  of  Chilperich,  in  turn,  gave  pre- 
cedence to  the  daughters  and  brothers  and  sisters,  at  least,  over 
the  commune.  But  it  was  only  in  the  course  of  the  600  s,  after 
the  right  of  grandsons  to  succeed  per  stirpes  had  already  been 
introduced  for  x\ustrasia  in  the  course  of  the  500  s,  that  all  rights 
of  the  commune  restrictive  of  the  kindred's  rights  of  inheritance 
were  done  away  with.  The  old  collective  rights  of  the  commune 
were  so  weakened  as  to  become  mere  rights  of  preemption  (appor- 
tionment of  the  mark  by  lot :  "  Marklosung  ",  "  Nachbarlosung  "  ; 
swpra,  p.  400). 

(II)  Feudal  rights  of  escheat  existed  in  early  times  in  favor 
of  persons  freeing  others  in  the  property  of  such  freedmen ;  as 
respects  the  highest  classes,  therefore,  in  favor  of  the  king.  There 
was  here  involved,  originally,  an  actual  right  of  inheritance  on  the 
part  of  the  lord,  which  in  the  case  of  the  Franks  and  the  Anglo- 
Saxons  excluded  even  children,  but  in  the  case  of  other  legal  sys- 
tems was  postponed  to  them.  In  the  case  of  serfs  this  right  of 
inheritance  was  weakened  in  the  Middle  Ages  into  a  right  of 
escheat  that  took  effect  only  when  no  heirs  were  present  who  were 
members  of  the  same  community  (vill) ;  and  which  was  alsa 
postponed,  in  isolated  cases,  to  the  right  of  escheat  enjoyed  by 
the  royal  treasury.  A  great  role  was  played,  further,  by  the 
rights  of  escheat  of  land-lords  (''  Lciheherr  ")  in  lands  they  leased. 
These  were  recognized  equally  in  the  case  of  inferior  tenures,  in 
the  absence  of  nearer  heirs,  and  in  the  feudal  law,  according  to 
which  the  fief  escheated  to  the  lord  (supra,  p.  341)  if  a  vassal 
died  without  heirs  of  his  body  and  there  existed  neither  sub- 
tenure  ("  Afterleihe  ")  nor  contract  ("  Gedinge  ")  to  the  contrary. 

(Til)  Statutory  succession  rights  of  corporate  associations  and 
foundations  were  also  recognized  as  early  as  in  the  JNIiddle  Ages, 
although  only  infrequently.  Thus  it  was  sometimes  provided 
that  the  tools  of  a  dead  craftsman  should  pass  to  the  craft-gild  ; 
the  University  of  Vienna  received  a  right  of  escheat  in  the  estates 
of  its  professors,  doctors,  masters,  bachelors,  students,  beadles, 
and  servants  in  default  of  heirs  ;  a  right  of  escheat  existed  in  favor 
of  religious  esta})lisliments  and  hospitals  in  the  estates  of  persons 
who  died  within  their  walls ;  etc.  The  statutory  herital  rights  of 
cliaritable  institutions,  orphans'  homes,  and  hospitals  have  been 
retained  in  modern  legal  systems,  though  they  have  been  quite 
differently  developed  in  details.  Sometimes  a  limited  right  of 
inheritance  was  recognized  in  favor  of  prisons  in  the  property  of 

738 


Chap.  XV]  INTESTATE   SUCCESSION  [§  109 

dead  prisoners.  The  Introductory  Statute  of  the  present  Civil 
Code  has  maintained  intact  (§  139)  those  provisions  of  State  law 
which  give  a  herital  right  to  the  state  treasury,  or  to  other  juristic 
persons,  in  the  estates  of  persons  supported  by  or  under  the  care 
of  the  State  or  of  such  other  juristic  person. 

(IV)  The  right  of  escheat  of  the  public  treasury  in  heirless 
estates  was  recognized  already  in  the  Frankish  period.  When  it 
was  applicable  depended  of  course  upon  the  question  how  far  the 
kindred's  right  of  inheritance  extended.  In  the  IMiddle  Ages  this 
right  of  the  Empire  passed  in  almost  every  Territory  to  the  Terri- 
torial ruler ;  although  in  a  few  imperial  cities,  as  for  example  in 
Frankfort,  the  crown's  right  remained  intact  down  into  the  1500  s. 
In  the  terminology  of  the  medieval  sources,  this  right  was  exer- 
cised by  the  "  judge  "  ("  Richter  "),  —  that  is,  by  the  princes 
who  were  enfeoffed  by  the  crown  with  rights  of  jurisdiction,  and 
in  the  cities  by  the  city  authorities,  —  for  his  own  profit.  That 
is,  when  no  heirs  presented  themselves,  and  particularly  if  none 
had  presented  themselves  by  the  thirtieth  day,  the  judge  took 
possession  of  the  estate,  retained  it  under  his  control,  and  waited 
for  a  year  and  a  day  to  see  whether  any  one  would  claim  it.  The 
chattels  he  might  devote  to  his  own  profit  at  the  expiration  of 
this  time ;  the  rights  of  the  heir  in  lands  were  barred  by  prescrip- 
tion only  after  thirty-one  years  and  a  day.  In  the  cities  the 
estate  was  frequently  divided  ;  for  example,  a  third  might  be 
delivered  to  the  city,  a  third  to  the  Church  or  the  poor,  and  a 
third  to  the  lord.  In  modern  times  the  right  of  escheat  was  gen- 
erally attributed  to  the  State  as  an  incident  of  sovereignty ;  in 
exceptional  cases  it  was  attributed  to  manorial  lords  as  an  incident 
of  their  power  of  judicature,  and  in  rare  cases  to  particular  urban 
communes  and  corporations.  The  latter  right  has  been  preserved 
by  the  Introductory  Statute  to  the  Civil  Code ;  the  former  (the 
right  of  manorial  lords)  has  been  abrogated.  It  was  a  contro- 
verted question  in  the  common  law  whether  the  State  treasury 
possessed  a  mere  right  of  occupancy  in  heirless  estates  or  became 
the  heir,  but  modern  codes  have  generally  treated  it  as  a  statutory 
heir.  Thus,  according  to  the  Civil  Code  the  State  or,  as  the  case 
may  be,  the  imperial  treasury,  is  a  statutory  heir  ;  only  it  cannot, 
like  a  true  heir,  refuse  the  inheritance  (§  1936).  The  Swiss  Civil 
Code  (§  466)  likewise  provides  that  when  the  decedent  leaves  no 
heirs  entitled  to  the  heritage  it  shall  fall  to  the  canton  or  the  com- 
mune, subject  to  rights  of  usufruct  in  favor  of  great-grandparents 
and  the  brothers  and  sisters  of  grandparents, 

739 


§  110] 


THE    LAW    OF    INHERITANCE 


[Book  V 


Chapter  XVI 


TESTAMENTARY  SUCCESSION 


§110.    Gifts  "mortis  causa"  in  the 
Old  Law. 

I.    Adoption  in  the  Prank- 
ish    Law     and     the 
Lombard         Herital 
Contract. 
II.    Gifts  "mortis  causa." 
§  111.    Contracts  of  Inheritance. 
I.    In  general. 
II.    Contracts   for   the   In- 
statement  of  Heirs. 


III.    Renunciations  of  Heri- 
tal Rights. 
§  112.    The  Testament. 

I.    The  Older  Law. 
II.    The  Modern  Law. 

(1)  Form. 

(2)  Content. 

(3)  Joint  testaments. 
§  113.    The  Executor. 

I.    The  Older  Law. 
II.    The  Modern  Law, 


§  110.  Gifts  "mortis  causa"  in  the  Old  Law.^  (I)  Adoption  in 
the  Frankish  Law  and  the  Lombard  Herital  Contract. — The  very 
nature  of  the  Germanic  law  of  inheritance,  as  a  law  of  kinship  based 
exclusively  upon  blood  relationship,  necessarily  wholly  excluded, 
originally,  testamentary  dispositions  of  the  estate.  "  Whoever, 
upon  his  death,  left  members  of  his  household  or  sib  who  were 
entitled  to  inherit  by  rule  of  law,  could  appoint  no  other  heir."  ^ 
Only  he  who  had  no  heir  could  create  one.     The  oldest  Germanic 

1  Pappenheim,  "Launegild  und  Garethinx",  no.  14  (1SS2)  of  Gierke's 
"Untersuchungen" ;  Huhncr,  "Die  donationes  post  obitum  und  die 
Schcnkungen  mit  Vorbehalt  des  Niessbrauclis  im  iiltercn  deutschen  Recht ", 
no.  26  (1888)  of  Gierke's  "Untersuchungen";  Richard  Schmidt,  "Die 
Affatomie  der  Lex  Salica"  (1891) ;  Schupfer,  "Thinx  e  Affatomia"  (1892) ; 
Grm'lr,  "Die  Entwicklung  der  letzwilligen  Verfiigungen  nach  den  Rechts- 
quellen  des  Kantons  St.  Gallen"  (Dissertation,  1894);  lirunner,  "Der 
Totenteil  in  germanischen  Rechten",  in  7J.  R.  G.,  XIX  (1898),  107-139. 
"Das  rechtliche  Fortleben  des  Toten  bei  den  Germanen",  in  Deut. 
Monatssch.  ges.  Leben,  VI  (1907),  18-32;  Bartsch,  "Seelgeriilstiff ungen 
im  14.  Jahrhundert,  Ein  Heitrag  zur  Gcsr-hichte  des  Testaments  in  Oster- 
reieh",  in  "  Festgabe  fin*  Ainira"  (1908),  1-58;  Gdl,  "Totenteil  und 
Seelteil  nach siiddeutschen  Rechten",  in  Z^.  R.  G.,  XXIX  (1908),  225-238; 
Kogler,  "Seelenrecht  und  Pchifall  in  Salzburg  und  Tirol",  in  "PVstgabo 
fiir  Brunner"  (1910),  175-180;  Robert  M tiller,  "Die  Vergabiingen  von 
Todeswegen  im  Gebiet  des  Magdeburger  Stadtrechts",  in  Tliiiringisch- 
siichsische  Z.  G.  K.,  I  (1911),  71-98,  187-220;  EhreuztvH(j,  "Die  ScIkmi- 
kung  auf  den  Todesfall"  in  the  "Festschrift  zur  .lahrhunderlfcicr  des 
(osterreiehischen)  allgemeinen  l>iirger!if']ien  Cieselzbuchs"  (1911),  II, 
625  e<  sev- ;  /''r;/r-o,  "  Lc  disposizioni  'pro  anima,'  Fondamenti  dodrinali, 
forme  giuridiche"  (1911);  Rirtschrl,  "Der  'Totenteil'  in  germanischen 
Rechten",  in  Z^.  R.  G.,  XXXII  (1911),  297-312;  Biqeloxr,  "The  Rise  of 
the  English  Will",  in  "Select  Essays  A.  A.  L.  H.",  U\,  770  et  seq. ;  liruck, 
"Die  Schenkung  auf  den  Todesfall  im  grieehischen  und  romischen  Recht, 
zugleieh  ein  Beitrag  zur  Gesehielite  des  Testaments,  I.  Teil :  Das  griech- 
ische  Recht  bis  zum  Beginn  der  hellenistischen  Epoche"  (1909). 

2  Heusler,  "Institutionen",  II,  021. 

740 


CSAP.  XVI]  TESTAMENTARY    SUCCESSION  [§  110 

law  recognized  a  peculiar  institute  which  served  this  purpose, 
a  herital  contract  ("  Erbschaftsgedinge  "),  which  is  most  clearly 
revealed  to  us  in  the  Frankish  "  affatomie  "  already  mentioned 
in  connection  with  adoption  (supra,  p.  661),  and  in  the  Lombard 
herital  contract  the  "  thinx  "  or  "  gairethinx."  It  seems  per- 
missible to  assume  that  it  was  originally  the  folk  that  appointed 
an  heir  to  an  heirless  man  ;  and  that  though  the  appointment  of 
the  heir  was  later  left  to  the  deceased,  there  was  still  required  a 
cooperation  of  the  popular  assembly,  or  of  the  king  who  took  its 
place.  This  is  explained  by  the  fact  that  the  right  of  escheat  of 
the  commune  or  of  the  king  was  rendered  valueless  by  such  crea- 
tion of  an  artificial  heir ;  which  therefore  required  the  assent  of 
whoever  enjoyed  such  right  of  escheat.  The  origin  of  this  juris- 
tic act  explains  its  peculiar  form,  which  was  similar  to  that  usual 
in  the  grant  of  arms  ("  Wehrhaftmachung  "),  emancipation,  and 
adoption.  Among  the  Lombards,  this  contract  of  inheritance  was 
concluded  in  public  meeting  of  the  folk-court  ("thinx"),  the 
deceased  delivering  a  spear  ("  ger  ")  to  the  contractual  heir  by 
the  hand  of  a  third  person,  the  "  spear-pledge  "  ("  Speerbiirge  "), 
whence  the  name  "  gairethinx  "  or  "  thingatio."  ^  In  the  Lom- 
bard "  gairethinx  "  the  character  of  the  institute  as  one  belong- 
ing to  the  family-law,  —  namely  as  one  for  the  creation  of  an  heir, 
an  "  heredem  appellare  ",  "  in  hereditatem  adoptare  ",  —  is 
still  plainly  visible,  notwithstanding  that  the  transaction  is  already 
permitted  in  the  case  of  mere  default  of  children  and  parents. 
The  Salic  "  affatomie  ",  however,  notwithstanding  it  is  also  very 
ancient  in  form,  already  shows  the  beginning  of  a  weakening  of 
the  institute  into  a  mere  transfer  of  property.  Originally  per- 
formed as  one  act,  the  transaction  was  divided  in  the  Salic  Law 
into  three  acts,  publicly  performed  and  distinct  in  time.  The  first 
was  the  manual  tradition  of  a  "  festuca  ",  in  place  of  a  spear,  to 
the  trustee  ("  Salmann  ",  "  Treuhiinder  ")  ;  this  act  was  per- 
formed in  the  minor  folk-court  ("  gebotenes  Ding  ")  and  indicated 
at  once  the  person  of  the  intended  heir  and  the  amount  of  the  gift 
contemplated  in  his  favor.  The  second  act  consisted  in  the  Sal- 
mann's  moving  into  the  house  of  the  deceased  and  there  per- 
forming the  "  sessio  triduana  ",  by  which  he  made  evident  in 
traditional  and  visible  manner  the  vesting  of  the  seisin  (supra, 
p.  191).  As  the  third  act,  which  was  required  to  be  performed 
within  a  year,  there  followed,  finally,  the  delivery  of  the  "  festuca  " 
to  the  contractual  heir  in  the  jjresence  of  the  royal  court  or  in 

1  "Roth",  172. 
741 


§  110)  THE    LAW    OF    INHERITANCE  [BoOK  V 

the  major  folk-court  ("  echtes  Ding ").  There  was  therefore 
no  longer  any  question,  here,  of  the  adoption  of  the  intended  heir 
into  the  narrowest  circle  of  heirs,  the  "  Busen  "  ;  the  most  essen- 
tial part  of  the  transaction,  which  alone  required  performance  be- 
fore the  royal  court  or  the  major  folk-court,  was  the  final  act  of 
transfer  by  the  Salmann.  In  the  courts  of  the  Prankish  period 
the  "  affatomie  "  became  transformed  into  a  mere  gift  to  take 
effect  on  death.  Out  of  the  "  spear-pledge  "  of  the  "  Lex  Salica  " 
there  was  developed,  by  changes  which  began  even  under  that 
statute,  a  "  Salmann  of  unlimited  powers  conferred  by  a  real 
contract,  who  upon  the  death  of  the  deceased  was  bound  to  make 
the  conveyance  to  the  intended  heir."  ^  The  addition  of  a 
middle-man,  however,  remained  a  dispensable  element ;  the  Lex 
Ribuaria  already  permitted  the  gift  ("  adfatimus  ")  by  the  deliv- 
ery of  a  document.  The  old  forms  were  thus  preserved  in  a  weak- 
ened form,  but  made  to  serve  a  new  purpose. 

(II)  Gifts  "  mortis  causa."  —  Inasmuch  as  "  affatomie  "  and 
"  gairethinx  "  created  an  artificial  heir  to  take  the  place  of  a 
natural  heir  who  was  lacking,  they  did  not  contradict  the  prin- 
ciple that  a  dead  person's  estate  might  pass  only  to  his  heirs. 
The  right  in  expectancy  of  the  next  heirs,  which  was  based  upon 
the  idea  of  the  household  property,  made  impossible  both  gifts 
inter  vivos  and  gifts  mortis  causa  by  which  parts  of  the  heritage 
could  have  been  alienated  from  those  entitled  in  expectancy.  It 
was  only  gradually  that  the  development  of  the  "  free-portion  " 
secured  to  the  decedent  the  power  freely  to  dispose  of  a  certain 
portion  of  his  property.  This  free-portion,  according  to  Brunner's 
illuminating  suggestion,  was  developed  from  the  "dead  man's 
portion  "  ("  Totenteil  ")  that  was  recognized  in  the  oldest  Ger- 
manic law ;  that  is,  from  that  part  of  the  movable  estate  that  was 
laid  with  the  dead  man  in  his  grave  or  burned  with  him,  in  order 
that  it  might  aid  him  to  reach  the  kingdom  of  the  dead  comfort- 
ably and  free  from  danger  and  enable  him  to  continue  there  his 
accustomed  mode  of  life.-  This  death-portion  was  regarded  as 
the  dead  man's  own  share  in  his  estate,  given  to  him  for  his  own 
use  in  his  life  beyond  the  grave.  In  the  case  of  rulers  it  consisted 
of  rich  treasures,  —  think,  for  example,  of  the  riches  that  were 
buried  with  Alaric  in  the  Busento !  In  the  case  of  warriors  it 
always  included  charger  and  weapons.  That  the  cremation  of 
widows  was  possibly  connected  with  the  same  idea  has  already 

»  Schroder,  "Lehrbuch"  (5th  ed.),  348. 

^  Rietschel,  op.  cit.,  740  supra,  takes  exceptions  to  Brunner's  views. 

742 


Chap.  XVI]  TESTAMENTARY   SUCCESSION  [§  110 

been  suggested  (supra,  p.  611).  It  was  a  widespread  custom  to 
set  apart  a  third  of  the  movable  estate  as  the  death-portion,  from 
the  part  belonging  to  the  heirs.  This  remained  longest  influential 
in  the  English  law ;  in  the  older  English  legal  sources  (Glanville, 
Bracton)  this  three-fold  division  of  the  movable  estate  into  the 
wife's  part,  the  bairn's  part,  and  the  dead's  part  was  treated  as  a 
common  "  consuetudo  terrae."  Under  the  influence  of  Christian 
ideas  the  death-portion,  which  had  its  roots  in  heathen  mytho- 
logical ideas,  lost  its  importance.  It  was  no  longer  buried  with 
the  dead  man  in  order  that  it  might  serve  his  personal  use  in 
another  world,  but  was  given  to  the  Church  or  to  the  poor,  in 
order  that  it  might  serve  the  good  of  the  dead  man's  soul.  The 
old  death-portion  thus  became  in  Christian  times  a  soul-portion 
C'Seelteil",  " -gerat  ",  " -schatz  ",  "-ding").i  This  historical 
process,  and  the  tenacious  perdurance  of  the  primitive  views,  is 
most  tangibly  evidenced  in  a  Bavarian  ordinance  of  1806,  which 
contains  provisions  regulating  dispositions  of  property  "  wherein 
the  poor  soul  of  the  deceased  is  made  his  universal  heir."  As 
respects  that  portion  of  his  property  which  was  to  be  devoted 
after  his  death  to  the  good  of  his  soul,  it  was  of  course  natural  to 
permit  the  deceased  himself  to  make  provisions  for  that  purpose. 
Thus  the  free-portion  was  first  used  to  make  gifts  to  the  church. 
In  the  folk-laws  it  was  expressly  recognized  that  the  father,  either 
after  the  departure  of  the  children  from  the  paternal  household 
or,  as  was  generally  permitted  even  in  the  Carolingian  period, 
without  such  departure,  might  freely  dispose  for  the  good  of  his 
soul  of  his  share  in  the  household-property,  his  free-portion. 

According  to  the  results  of  Brunner's  researches  ^  there  must 
also  be  derived  from  the  dead's-portion  the  institute  of  the 
*'  best-animal  "  ("  Besthaupt  ")  and  other  succession-tributes 
("  Sterbefall  ",  heriot) ;  those  widely  prevalent  gifts  of  the  medie- 
val law  that  were  due  from  dependent  persons  to  their  lord  out 
of  the  movable  estate,  and  which  consisted  of  certain  heredita- 
ments, —  often  the  best  piece  or  head  of  cattle,  the  best 
garment,  or  not  infrequently  whatever  the  lord  might  choose 
(whence  the  name  "  Kurmede  "),  —  or  else  a  fixed  sum  of  money. 
The  heriot  was  originally  conceived  of  as  a  debt  of  the  dead  per- 
son, not  as  one  of  the  heir  ;  and  the  right  of  the  lord  as  a  creditor's 
right,  not  as  a  right  of  inheritance.     The  heriot  consisted,  there- 

1  Brunner,  in  Z\  R.  G.,  XIX,  120. 

■  Brunner,  "Zur  Gcschichte  der  illtesten  deutschen  Erbschaftssteuer", 
in  the  "Festschrift  fiir  Martitz"  (1911),  1-31. 

743 


§  110]  THE    LAW    OF    INHERITANCE  [BoOK   V 

fore,  of  that  portion  of  the  heritage  which  belonged  to  the  dead 
person.  "  The  vassal  ('  Schutzhorige  ')  was  bound  to  leave 
behind  him  as  a  final  rent,  as  a  last  compensation  for  the  protection 
by  his  lortl  which  he  had  enjoyed  in  his  lifetime,  some  part  of  that 
which  he  would  have  taken  with  him  as  a  free  man  into  the 
beyond."  ^ 

These  gifts  mortis  causa,  customary  in  the  Frankish  period, 
were  not  testamentary  dispositions  in  the  technical  sense  of  those 
words ;  that  is,  they  were  not  juristic  acts  revocable  until  the 
death  of  the  testator.  They  were  rather  "juristic  acts  inter  vivos 
to  take  effect  upon  death."  ^  They  belonged,  not  to  the  law 
of  inheritance  but  to  the  law  of  things ;  they  were  not  unilateral, 
but  bilateral,  juristic  acts,  in  other  words  contracts.  They 
were  consummated  either  as  "  donationes  post  obitum  "or  as  gra- 
tuitous gifts  with  reservation  of  usufruct,  —  legal  institutes  which 
though  indistinguishable  in  their  economic  effects  were  perfectly 
distinguishable  as  respects  their  legal  nature.  The  "  donatio  post 
obitum  "  was  a  conveyance  of  property  that  was  made  subject 
to  a  condition  precedent.  The  condition  was  the  death  of  the 
donor  and  the  survival  of  the  donee;  however,  in  the  ordinary 
case  of  gifts  to  churches,  inasmuch  as  the  happening  of  this  con- 
dition was  certain,  the  time  specified  in  the  gift  was  the  time  at 
which  such  gift  was  to  take  effect.  Although  the  juristic  act 
became  potentially  valid  with  the  making  of  the  gift  its  efficacy 
was  perfected  only  at  the  instant  of  the  donor's  death.  In  the 
meantime  no  outward  change  took  place;  in  law,  however,  the 
donee  became  the  owner  at  the  instant  the  gift  was  made.  He 
received  by  it  a  seisin  in  expectancy,  which  took  effect  immedi- 
ately upon  the  death  of  the  donor,  and  though  not  at  once  per- 
ceptible, it  restricted  in  the  meanwhile  the  seisin  remaining  in  the 
donor  for  life,  so  that  the  latter  coukl  no  longer  dispose  of  the 
substance  of  the  thing  so  given.  A  gift  subject  to  the  reservation 
of  usufruct  was  an  absolute  juristic  act ;  it  became  effective  imme- 
diately and  without  qualification  ;  the  pro])rietary  seisin  passed 
at  once  to  the  donee,  as  was  frequently  made  evident  by  the  per- 
formance of  the  "  sessio  triduana  ",  and  there  remained  in  the 
donor  merely  a  usufructuary  seisin  in  the  land.  Between  the 
donor  and  the  donee  there  was  created  a  relationship  of  tenure ; 
the  donor  receiving  the  usufruct  either  of  the  identical  land  that 

*  Brunner,  "Zur  Ocsfhiclito  dor  iiltcston  deutschen  Erbschaftssteuer  ** 
in  the  "  Festschrift  fur  Martitz  "(1911),  30. 
2  Gierke  in  HoUzendorff-Kohler,  I,  551. 

744 


Chap.  XVI]  TESTAMENTARY   SUCCESSION  [§  110 

was  the  object  of  the  gift  ("  precaria  oblata  ")  or  of  other  lands 
belonging  to  the  church  ("  precaria  remuneratoria  "),  in  return 
for  which  he  ordinarily  paid  the  church  a  rent.  Both  these 
transactions  were  ordinarily  consummated  by  "  traditio  cartse  ", 
in  which  connection  resort  was  often  had  to  the  Salmann  of  the 
old  Frankish  adoption  ("  affatomie  "),  who  was  bound  to  perform 
the  act  of  donation  when  the  donor  was  for  any  reason,  as  for 
example  sickness,  unable  to  do  so.  Frequently,  these  transac- 
tions were  performed  in  such  a  way  as  to  indicate  that  the  "  dona- 
tio post  obitum  "  should  become  effective,  not  upon  the  death 
of  the  donor  but  only  after  the  death  of  a  third  person ;  or  that 
the  usufruct  should  be  reserved  not  only  to  the  donor  but  also  to 
a  third  person,  or  only  to  such  third  person.  In  this  way  the 
heirs'  rights  in  expectancy  could  be  protected  in  case  the  free  por- 
tion was  exceeded.  But  inasmuch  as  gifts  to  ecclesiastical  in- 
stitutions enormously  increased  in  number  and  amount  in  the 
600  s  and  700  s,  forcing  into  the  background  the  idea  of  the  free 
portion,  and  inasmuch,  further,  as  the  requirement  that  the  donor 
must  dispose  of  his  free  portion  exclusively  for  pious  purposes  was 
not  strictly  enforced,  the  right  of  donation  was  constantly  ex- 
tended at  the  expense  of  rights  in  expectancy. 

Contractual  gifts  mortis  causa  under  the  law  of  things  remained 
in  use  throughout  the  Middle  Ages.  They  were  employed  not  only 
in  the  old  way  in  endowments  for  the  good  of  the  donor's  soul,  but 
were  also  resorted  to  between  kindred,  and  for  the  gift  of  entire 
estates  or  shares  in  estates.  Spouses  assigned  to  each  other  in 
this  way  their  respective  properties ;  grandparents  used  them  to 
divert  their  property  to  their  grandchildren,  in  order  to  secure 
them  rights  of  representation  in  place  of  their  dead  parents ;  they 
were  even  permitted  for  the  purpose  of  making  gifts  of  specific 
chattels  or  sums  of  money,  —  although  only  under  certain  pre- 
conditions, since  chattels  could  not  in  theory  be  donated  from  the 
deathbed,  and  moreover  the  rule  "  donner  et  retenir  ne  vaut  " 
stood  in  the  way  of  such  gifts  {supra,  p.  42G).  As  respects  the 
form  in  which  such  gifts  mortis  causa  were  consummated,  execu- 
tion in  court  took  the  place,  generally  speaking,  of  the  "  traditio 
cartae  "  customary  in  the  Frankish  period ;  it  was  absolutely 
required  in  North  Germany.^  The  requirement  that  such  trans- 
actions be  executed  in  a  sacred  ("  hedged  ")  folk-court  was  justi- 
fied primarily  on  the  ground  that  possible  heirs  could  make  effective 
in  this  way  only  their  right  to  object  to  alienations  ("  Wider- 

»  Ssp.,  II,  30. 
745 


§  llOJ  THE    LAW    OF    INHERITANCE  [BooK   V 

spruchsrecht  "),  and  also  that  their  interests  could  be  protected 
by  the  judge.  The  peace-ban  of  the  court  had  the  effects  of  cita- 
tion {d'lipra,  p.  202)  seisin.^  In  South  Germany,  on  the  other 
hand,  gifts  outside  of  court  under  letter  and  seal  were  early  recog- 
nized along  with  the  judicial  form. 

These  gifts  under  the  early  medieval  law  of  things,  which  are 
called  in  the  documents  themselves  "  donationes  irrevocabiles 
inter  vivos  "  (in  German,  "  Gemachte  ",  "  Geschafte  ",  "  Ge- 
liibde  "),  changed  their  nature  at  an  early  day.  As  a  result  of 
their  increasing  adoption  of  elements  of  the  inheritance  law,  there 
were  gradually  developed  from  them  other  juristic  acts  which, 
instead  of  creating  present  claims  under  the  law  of  things,  created 
future  rights  of  inheritance,  —  namely,  contracts  of  inheritance 
and  wills. 

§111.  Contracts  of  Inheritance.^  (I)  In  general.  —  If  we 
understand  by  a  "  contract  of  inheritance  "  ("  P^rbvertrag  ") 
a  contract  that  creates  or  that  destroys  the  qualifications  of 
an  heir,  then  the  "  Gemachte  "  and  "  Geschafte  "  of  the  Middle 
Ages  were  not  yet  contracts  of  inheritance  in  the  technical  sense. 
For  although  the  person  appointed  to  take  the  inheritance  ("  Be- 
dachte  ",  "  intended  heir  ")  was  frequently  designated  in  them  as 
the  "  heir  ",  he  was  no  actual  heir  but  merely  received  through  the 
transaction  an  immediate  right  involving  more  or  less  decisive 
consequences.  The  effect  of  the  contract  was  not  the  instatement 
of  an  heir  but  an  acquisition  of  ownersliip  inter  vivos.  How  little 
it  was  regarded  as  conferring  the  qualifications  of  an  heir,  is  shown 
by  the  fact  that  the  deceased  frequently  gave  the  intended  "  heir  ", 
meanwhile,  a  co-enjoyment  of  the  property ;  in  other  words,  en- 
tered with  him  into  a  community  of  collective  hand,  —  the  conse- 
quence of  which  was  that  upon  the  death  of  one  commoner,  the 
decedent,  the  share  he  left  accrued  to  the  other  commoner,  the 
intended  heir.  But  just  as  the  "  Gemachte  "  led  along  one  line 
of  (]evelo])inent  to  the  testament,  so  it  was  j)ossible  to  j^ass  from 
it  along  anotlier  line  to  the  contract  of  inheritance.  Its  character 
as  a  bilateral  contract  inter  vivos  was  maintained,  but  there  was 
united  witli  this  the  appointment  of  the  heir.  Such  contracts 
of  inluTitance  earliest  appeared  as  juristic  acts  between  spouses, 
who  tlnis  assured  to  each  other  mutual  and  irrevocable  rights  of 
succession  in  their  respective  estates.  Renunciations  of  herital 
rights  were  also  concluded  in  this  manner,  by  contract,  in  the  late 

»  Swsp.,  22  (G.). 

2  Beseler,  "Die  Lohro  von  den  Erbvertragon "  (3  vols.,  1835, 1837, 1840). 

746 


Chap.  XVI]  TESTAMENTARY   SUCCESSION  [§  HI 

Middle  Ages.  Nevertheless,  the  development  of  the  contract 
of  inheritance  as  an  independent  and  universally  recognized 
institute  of  the  inheritance  law  was  realized  only  after  the  Recep- 
tion, and  thanks  to  the  work  of  the  jurists  ;  for  though  they  at  first 
repudiated  such  contracts  as  inconsistent  with  the  view  of  the 
Roman  law,  they  later  recognized  them,  systematically  developed 
them,  and  secured  their  adoption  in  judicial  practice.  For  this 
reason  Beseler  found  in  the  inheritance  contracts  of  the  modern 
common  law  a  leading  example  of  what  he  called  "jurist-law  " 
{supra,  p.  31).  Contracts  of  inheritance  were  also  recognized 
in  most  of  the  modern  codes.  They  were  recognized  in  general 
terms  by  the  Bavarian  "Landrecht,"  the  Prussian  "Landrecht," 
the  Saxon  Code,  and  likewise  by  the  Zurich  Code,  which  has  been 
followed  by  the  Swiss  Civil  Code.  The  Austrian  Code,  however, 
has  recognized  them  only  between  spouses,  —  indeed,  it  is  only 
as  contracts  between  spouses  that  contracts  of  inheritance  have 
anywhere  attained  actual  importance,  —  and  the  Code  Civil 
solely  in  connection  with  marriage  contracts  between  betrothed 
couples  for  the  benefit  of  themselves  and  their  expected  children. 
The  present  Civil  Code  has  likewise  recognized  the  contract 
of  inheritance  as  a  contractual  disposition  mortis  causa.  As 
distinguished  from  a  will  it  is  not  a  testamentary  ("  letztwillig  ") 
disposition,  but  merely  a  binding  contract ;  and  as  distinguished 
from  the  old  gift  mortis  causa  its  effects  are  felt,  not  under 
the  law  of  things  but  in  the  law  of  inheritance.  As  respects 
their  content,  inheritance  contracts  are  either  for  the  appoint- 
ment of  an  heir,  or  contracts  of  legacy,  or  renunciations  of 
inheritance. 

(II)  Contracts  for  the  instatement  of  heirs,  among  which  must 
be  reckoned  also  the  herital-brotherhoods  of  houses  of  the  greater 
nobility,  appear  in  various  forms.  Such  a  contract,  when  simply 
for  the  appointment  of  an  heir,  creates  a  unilateral  right  of  inheri- 
tance on  the  part  of  one  party  to  the  contract ;  when  a  bilateral 
contract,  it  creates  a  mutual  right  of  inheritance  in  both  parties, 
in  such  manner  that  in  case  of  invalidity  of  the  one  appointment 
the  other  also  becomes  invalid.  When  a  "  restitutive  "  contract, 
it  passes  the  inheritance  to  a  third  person,  the  heir  obligating  him- 
self to  deliver  the  estate  to  such  person ;  when  a  "  dispositive  " 
contract,  it  is  concluded  in  favor  of  one  who  is  not  a  party  to  the 
contract  but  who  is  to  acquire  the  estate  immediately  upon  the 
death  of  the  decedent.  The  contract  for  the  appointment  of  the 
heir  either  creates  an  entirely  new  right  of  inheritance  ("  pactum 

747 


§111]  THE    LAW    OF    INHERITANCE  [BoOK   V 

successorium  acquisitivum  ")  or  guarcantees  a  rijxlit  of  inheritance 
already  existing  ("  pactum  successorium  conservativum  ").  It 
creates  either  a  right  of  inheritance  free  of  every  other  co-existent 
right,  or  a  right  that  is  conditional,  limited  in  time,  or  otherwise 
restricted.  It  may  refer  either  to  the  whole  heritage  or  to  a  quota 
thereof.  If  it  refers  only  to  specific  objects  it  is  a  contract  of 
legacy.  This  has  been  generally  recognized, — though  its  ad- 
missibility has  been  combated  by  many  jurists  (for  example, 
Beseler),  —  in  modern  codes,  and  has  been  maintained  intact 
in  the  present  Civil  Code  as  well  as  in  the  Swiss  Civil  Code. 
The  legacy-contract  creates  merely  a  contract  claim  to  a  legacy. 
Whereas  it  was  doubtful  under  the  common  law  whether  a  con- 
tract for  the  appointment  of  an  heir  must  be  in  a  particular  form, 
the  prevailing  opinion  favoring  its  informality,  modern  statutes 
have  required  writing  or  execution  in  court,  and  the  Prussian 
"Landrecht"  and  the  Saxon  Code  even  testamentary  form.  The 
latter  rule  has  been  followed  by  the  present  Civil  Code,  which 
prescribes  the  form  of  a  judicial  or  a  notarial  testament.  The 
Swiss  Civil  Code  also  requires  the  form  of  a  public  testamentary 
disposition.  Such  a  contract  gives  the  donee  a  right  of  inheritance 
which  the  donor  cannot  alone  revoke,  charge,  or  qualify.  In 
other  respects,  however,  he  remains  free  to  dispose  of  his  property 
by  juristic  acts  inter  vivos ;  for  example,  he  may  alienate  it. 
The  older  law,  however,  permitted  the  contractual  heir  to  avoid 
a  fraudulent  ("  dolose  ")  alienation  or  at  any  rate  a  voluntary 
gift ;  and  under  the  Prussian  law  he  could  also  demand  the  ap- 
pointment of  a  guardian  for  the  deceased  when  the  latter  was 
squandering  his  property.  The  present  Civil  Code  gives  to  the 
contractual  heir  the  right  to  demand  the  return  from  a  donee  of 
voluntary  gifts  which  the  deceased  has  made  to  the  prejudice  of 
the  contractual  heir ;  this  upon  the  theory  of  unjust  enrichment. 
A  contract  for  the  appointment  of  an  heir  can  be  rescinded  by  the 
concurrent  wills  of  the  parties  expressed  in  a  contract  of  the  same 
form ;  and  also,  exceptionally,  by  unilateral  withdrawal,  namely 
when  such  right  has  been  reserved  or  when  there  exists  a  statutory 
justification  therefor. 

(Ill)  Renunciation  of  herital  rights  is  a  contract  by  which 
one  person  renounces  in  favor  of  another  a  right  of  inheritance 
which  he  enjoys  in  preference  to  the  latter.  In  this  way  every 
right  of  inheritance  may  be  renounced,  whether  statutory,  testa- 
mentary, or  contractual,  —  the  last  by  the  third  person  for  whose 
benefit  the  contract  was  made.     Renunciations  of  inheritance, 

748 


Chap.  XVI]  TESTAMENTARY   SUCCESSION  [§  112' 

moreover,  were  informal  in  the  common  law,  whereas  in  the  pres- 
ent law  they  require  a  judicial  or  notarial  form.  As  a  result  of 
the  renunciation  the  party  renouncing  is  eliminated  from  the 
line  of  heirs,  so  that  in  the  absence  of  any  other  disposition  mortis 
causa  the  next  statutory  heir  is  substituted  in  his  place.  Under 
the  common  law  the  party  renouncing  could  not  thereby  bind 
his  descendants ;  in  the  regional  systems,  however,  —  which 
have  been  followed  by  the  present  Civil  Code  and  likewise  by  the 
Swiss  Civil  Code,  —  this  was  not  only  permitted  in  renunciations 
of  statutory  rights  of  inheritance,  but  was  assumed  as  the  intention 
of  the  parties  in  the  absence  of  specific  provision.  Renunciations 
of  herital  rights  by  daughters  of  noble  houses,  for  the  regulation 
of  which  special  rules  of  law  were  developed  among  the  greater 
nobility  and  the  imperial  knightage,  were  particularly  important. 
Their  purpose  was  to  prevent  the  equality  of  sons  and  daughters 
that  would  otherwise  have  existed  under  the  inheritance  law. 
The  daughters  upon  their  marriage  were  compelled  to  renounce 
by  document,  for  themselves  and  their  descendants,  their  rights 
of  inheritance ;  though  usually  only  in  favor  of  the  male  stock 
("  bis  auf  den  ledigen  Anfall  ").  If  the  male  line  became  extinct, 
so  that  the  "female  descendants",  —  that  is  (supra,  p.  715), 
the  kindred  related  through  women,  the  spindle-friends,  —  be- 
came entitled,  there  arose  "the  much  debated  question,  which  has 
given  rise  not  only  to  many  law-suits  but  also  to  bloody  wars  'V 
whether  the  estate  should  pass  to  the  renouncing  daughters  and 
their  line,  the  "  regressive  "  heirs  ("  Regredienterben  "),  or 
the  daughters  or  other  next  relatives  of  the  last  possessor  (the 
"  Erbtochter  ")  of  the  male  Hne  be  called  to  the  inheritance. 
Whereas  the  Imperial  Chamber  of  Justice  (of  the  old  Empire) 
regularly  decided  in  favor  of  the  regressive  female  heirs,  prevail- 
ing opinion  has  recently  aligned  itself,  generally  speaking,  upon 
the  side  of  the  females  of  the  male  line  ("  Erbtochter  "). 

§  112.  The  Testament.2  (I)  The  Older  Law. — When  the  old 
gifts  mortis  causa  became  true  contracts  of  inheritance,  this  signi- 

1  Gierke  in  HoKzendorff-Kohler,  I,  553. 

2  Fr.  V.  WijHs,  "Die  letzwilliiafon  Verfiigungen  naeh  den  sehweizerisehen 
Reehten  der  fruheren  Zeit",  in  Z.  schweiz.  R.,  XIV  (1875),  68  et  seq.  ; 
Demuth,  "Die  wechselseitigen  Verfiigungen  von  Todes  wegen  nach  alama- 
niseh-Ziiricherischem  Reeht  in  ihrer  gesehiehtliehen  Ent\vicklung  bis 
zur  Gegenwart",  no.  65  (1901)  of  Gierke's  "Untersuchungen" ;  Friese, 
art.  "Testament"  and  "Seelg(!riite"  in  the  glossary  to  his  and  Licscgang's 
ed.  of  the  "Magdebiirger-Sf'h()ffenspriir'h(>",  I  (1901).  833  ct  scq. :  '().  ho- 
ning, "Das  Testament  im  Gebiete  des  Magdeburger  Stadtreehts",  no.  82 
(1906)    of    Gierke's    "Untersuchungen";     Pappenheim,    " Eigenhandiges 

749 


§  112]  THE    LAW    OF    INHERITANCE  [BoOK   V 

fied  a  change  in  their  content  but  not  in  their  form.  A  transac- 
tion under  the  hiw  of  things  was  transformed  into  one  of  the  inheri- 
tance law,  —  the  intended  heir  ("  Bedachte  ")  no  longer  received 
a  present  right,  but  a  claim  mortis  causa ;  the  transaction,  how- 
ever, remained  a  bilateral  contract.  On  the  other  hand,  when 
such  gifts  became  testaments,  in  the  medieval  sense,  there  was 
therein  involved  primarily  a  change  of  form  ;  bilateral  transactions 
became  unilateral  dispositions  mortis  causa,  and  inasmuch  as 
they  acquired  the  quality  of  revocability  they  became  unilateral 
testamentary  dispositions.  That  such  unilateral  testamentary 
dispositions  were  inconsistent  with  the  most  important  principles 
of  the  Germanic  law  of  inheritance  has  already  been  remarked ; 
we  can  understand,  therefore,  why  they  were  able  only  very  grad- 
ually to  gain  recognition  and  prevalence.  And  wherever  the  idea 
retained  vitality  of  a  right  in  expectancy  in  the  heritage  and  the 
household-property,  or  a  general  conservatism  prevailed,  as  in 
Saxony,  men  struggled  with  a  special  obstinacy  against  such  uni- 
lateral transactions,  and  clung  tenaciously  to  the  requirement 
of  execution  in  court,  —  as  in  the  judicial  practice  of  the  Magde- 
burg skevins  of  the  1200  s  and  1300  s. 

The  first  of  such  unilateral  testamentary  dispositions  to  become 
established  were  those  for  the  good  of  the  donor's  soul.  Along 
with  these,  however,  the  contractual  form  of  the  law  of  things  re- 
mained common  throughout  the  Middle  Ages.  That  the  recog- 
nition of  the  efficacy  of  the  unilateral  testament  was  most  readily 
conceded  in  these  particular  instruments  can  be  readily  under- 
stood if  one  recalls  their  origin  in  the  free-portion  and  the  dead's- 
portion.  They  were  gifts  which  by  old  and  deeply  rooted  view 
were  regarded  as  necessary  even  when  blood  relatives  were  present. 
This  view,  as  already  mentioned,  was  supported  by  the  Church 
Avith  its  exceedingly  eflFective  weapons ;  he  who  made  no  testa- 
mentary gift  for  pious  purposes  was  denied  confession  and  absolu- 
tion, and  to  be  obliged  to  die  "  intestatus  "  and  "  inconfessus  " 
was  regarded,  naturally,  as  a  great  misfortune.  At  the  same  time, 
it  was  zealously  endeavored  from  tiic  side  of  the  secular  law  to 
restrict  such  gifts  for  the  donor's  soul  within  narrow  limits.  Al- 
though the  requirement  of  physical  health  (supra,  p.  425)  was 
in  time  abandoned,  and  dispositions  were  recognized  that  were 

Testament  und  Testierfreiheit  im  friiheren  Reeht  Schleswigs"  in  the 
''F'ostcaho  dcs  28.  doutsfhcn  Juristcntagos"  (1006);  J.  Merkd,  "Die 
justinianisfhen  Entcrbunf^sfifriindf,  cino  rczcptionssoschichtliche  Studie", 
no.  94  (1008)  of  Gierke's  "Untorsuohunfrcn" ;  with  which  compare 
A.  B.  Schmidt  in  Z\  R.  G.,  XXIX  (1908),  387-391. 

750 


Chap.  XVI]  TESTAMENTARY   SUCCESSION  [§  112 

made  by  the  donor  upon  his  death-bed  for  the  good  of  his  soul, 
nevertheless  it  was  frequently  provided  that  in  such  cases  a  cer- 
tain modest  portion  might  not  be  exceeded. 

However,  by  the  second  half  of  the  Middle  Ages  the  institute 
of  the  unilateral  testamentary  gift  had  already  gained  for  itself 
a  greatl}'^  widened  area  of  authority.  In  this  extension  of  gifts 
for  the  donor's  soul  to  testamentary  dispositions  of  varied  nature 
the  influence  of  the  Church,  which  assumed  jurisdiction  in  cases 
of  wills  and  championed  in  theory  the  freedom  of  dispositions 
mortis  causa,  was  of  decisive  importance.  So  also  was  the  example 
of  the  testaments  that  had  always  been  common  among  the  clergy. 
The  Church  had  very  early  devised  means  to  moderate  the  formal 
requirements  of  the  Roman  law  of  wills.  The  testaments  of 
ecclesiastics  were  reduced  to  the  form  of  a  protocol  either  before 
a  priest  and  two  witnesses  or  before  an  official  of  the  ecclesiastical 
court  or  before  a  notary,  and  were  recorded  by  such  registrar, 
or  written  down  by  the  testator  himself  in  a  private  document, 
or  orally  declared  by  him  upon  his  death-bed  to  those  about  him.^ 
The  laity  now  followed  this  example  with  increasing  frequency. 
How  rapidly  and  in  what  particular  form  unilateral  testamentary 
dispositions  of  lajTuen  might  spread,  depended  upon  many  special 
circumstances  and  therefore  varied  in  different  regions.  Execu- 
tion as  a  mere  private  document  was  at  first  frequently  forbidden  ; 
submission  of  the  testament  to  a  court  or  the  city  council,  or  its 
sealing  by  the  council,  or  its  drafting  before  two  councilors  or  two 
skevins,  or  other  like  requirements  being,  on  the  contrary,  pre- 
scribed. Although  the  requirement  of  a  certain  publicity  was 
thus  preserved,  the  decisive  thing,  nevertheless,  was  the  fact 
that  the  presence  of  the  intended  heir  in  court  and  his  acceptance 
of  the  gift  were  abandoned,  alike  in  testaments  of  laymen  and  of 
ecclesiastics.  In  exceptional  cases,  —  as  for  example  in  case  of 
severe  sickness,  —  the  testator's  appearance  before  the  official 
board  was  also  dispensed  with ;  a  deputation  of  the  city  council 
was  sent  to  his  home,  and  he  declared  his  last  will  in  their  pres- 
ence. After  this  it  was  only  a  short  step  to  declare  sufficient  the 
delivery  of  the  document  to  the  public  authorities.  In  many 
regions  the  Canonic  form  of  drafting  in  the  presence  of  a  priest 
and  two  witnesses  also  became  usual,  but  this  was  prohibited  by 
the  secular  authorities  from  the  1400  s  onward.  These  secular 
testaments  were  also  restricted  as  regards  their  content,  —  namely 
to  dispositions  of  specific  hereditaments ;  for  which  reason  they 
^  Heusler,  "Institutionen",  II,  647. 
751 


§  112 J  THE   LAW   OF   INHERITANCE  [BoOK  V 

resembled  more  the  Roman  "  Icgatum  "  than  the  Roman  testa- 
ment. In  particular,  the  nomination  in  them  of  the  heir  was  not, 
as  in  the  Roman  law,  an  absolutely  indispensable  requisite.  Stat- 
utory succession  could  therefore  be  combined  with  testamentary 
succession ;  in  so  far  as  there  was  no  testamentary  disposition, 
the  kindred  succeeded  under  the  statutory  rule.  Inasmuch  as 
the  testament  involved  a  great  danger  to  the  family  it  was  en- 
deavored to  protect  the  interest  of  kinsmen  by  legislation ;  a 
difficult  task,  which  resulted  at  first  in  "  an  oscillation  between 
the  owner's  complete  freedom  to  dispose  of  his  own  by  last  will, 
and  the  family's  claims  upon  the  property  of  its  member."  ^  It 
was  only  under  the  guidance  of  the  Roman  law  that  sound  prin- 
ciples were  finally  established  in  this  matter. 

(II)  The  Modem  Law.  —  After  the  Reception  many  rules  of 
the  Roman  law  of  wills  became  established  in  Germany,  but  in 
many  other  points  the  native  rules  were  maintained. 

(1)  As  respects  the  form  of  the  testament,  the  legislation  of 
the  Reception  period  adopted  the  Roman  private  testament  of 
seven  witnesses,  but  it  did  not  require,  to  adopt  the  words  of  the 
Nuremberg  Reformation,  the  observance  of  the  "  elaborate  nice- 
ties of  the  common  written  law."  They  acquired  no  authority, 
moreover,  in  legal  practice.  On  the  contrary  the  traditional 
forms  continued  to  be  extremely  widely  prevalent,  —  the  "  judi- 
cial "  testament,  made  either  by  a  personal  declaration  in  court 
of  the  testator's  last  will  or  by  a  personal  delivery  of  a  sealed 
or  unsealed  writing,  and  along  with  this  the  notarial  testament, 
of  the  same  possible  varieties.  These  also  passed  into  the  modern 
codes,  and  were  adopted  by  the  present  Civil  Code  as  equally 
valid  forms.  The  French  and  Austrian  law  recognized  in  addition 
the  holographic  testament,  and  this  has  likewise  been  recognized 
by  the  Civil  Code  as  the  common  law  form.  Along  with  ordi- 
nary forms  of  testament  there  were,  and  still  are,  recognized  ex- 
traordinary forms  subject  to  less  strict  conditions.  The  prin- 
ciples of  the  Swiss  Civil  Code  agree  in  all  respects,  in  this  matter, 
with  the  German. 

(2)  As  respects  the  content  of  the  testament,  in  the  common  law 
the  Roman  rule  became  dominant ;  namely,  that  it  must  contain 
a  nomination  of  tlie  heir.  The  majority  of  the  regional  statutes, 
and  among  the  Codes  the  Bavarian  and  Prussian  "  Landrecht "  and 
the  Austrian  Code,  clung  to  the  same  rule.  Testamentary  dis- 
positions without  nomination  of  an  heir  were,  however,  recognized 

»  Stobbe,  V,  214. 
752 


Chap.  XVI]  TESTAMENTARY   SUCCESSION  [§  112 

as  codicils.  On  the  other  hand,  many  codes  remained  true  to  the 
old  view  and  declared  the  nomination  of  an  heir  not  a  necessary 
part  of  a  testament.  This  was  true  of  the  Code  Civil,  the  Saxon 
Code,  and  the  Liibeck  Statute  of  1862.  These  have  been  followed 
by  the  present  Civil  Code  and  the  Swiss  Civil  Code.  The  Roman 
rule  "  nemo  pro  parte  testatus  pro  parte  intestatus  decedere 
potest  "  therefore  attained  only  a  very  limited  authority,  and 
disappeared  from  the  modern  law.  The  German  law  not  having 
reached  independently  (as  already  mentioned)  a  satisfactory 
compromise  between  the  principle  of  the  testator's  freedom  and 
the  interests  of  his  family,  the  Roman  substantive  law  of  the 
compulsory  portion  was  adopted,  though  to  be  sure  with  important 
changes,  especially  the  abrogation  of  the  formal  requisites  of  the 
Roman  succession  by  necessity.  Thenceforth  all  kinsmen  were 
obliged  to  submit  to  a  restriction  of  their  statutory  right  of  inheri- 
tance ;  but  descendants  and  ascendants,  to  some  extent  brothers 
and  sisters,  and  also  a  surviving  spouse,  received  in  exchange 
an  absolute  right  to  a  certain  share  of  their  statutory  portions. 
The  present  Civil  Code  has  done  away  with  the  right  of  brothers 
and  sisters  to  a  compulsory  portion ;  in  other  respects  it  has  fol- 
lowed in  essentials  those  modern  codes  which  adopted  the 
Roman  law  as  their  basis,  like  the  Prussian  "  Landrecht."  Con- 
sequently, as  under  this  and  the  common  law,  so  under  the  Civil 
Code  the  heir  of  necessity  who  is  passed  over  in  the  will  or  in- 
sufficiently remembered,  has  no  right  as  heir  to  the  compulsory 
portion  so  withheld  from  him,  but  merely  a  claim  as  a  creditor 
of  the  testamentary  heirs  for  the  value  of  whatever  fraction  of 
the  estate  should  have  been  left  to  him  as  a  compulsory  portion. 
In  contrast  to  this  rule,  the  French  and  the  Swiss  law  restricted 
within  much  narrower  limits  the  testator's  power  to  disinherit  his 
heirs  or  to  reduce  their  share,  conceding  him  dispositive  powers 
over  that  portion  only  which  was  not  reserved  for  his  next  heirs ; 
so  that  these  became  co-heirs  as  respects  the  compulsory  portion 
to  which  they  were  entitled.  In  the  Swiss  Civil  Code  it  was 
found  impossible  to  establish  a  uniform  regulation  of  the  law  of 
compulsory  portions,  save  as  a  system  subsidiarily  applicable. 

(3)  Joint  testaments.  —  Joint  ("  gemeinschaftliche  ",  i.e.  "  com- 
munity ")  testaments,  later  particularly  common  in  the  case  of 
spouses,  were  developed  in  the  legal  practice  of  Germany  from 
the  1300  s  onward.  Though  not  inconsistent  with  the  principles 
of  the  Roman  law  these  had  found  in  that  no  detailed  regulation, 
and    consequently   German   judicial   practice   and    legal   theory 

753 


§  112]  THE    LAW    OF    INHERITANCE  [BoOK  V 

oscillated,  in  their  treatment,  between  the  principles  of  the  Roman 
testament  and  those  of  the  Germanic  contract  of  inheritance. 
In  form,  the  joint  testament  was  an  ordinary  simple  testament. 
Aside  from  "  common  "  testaments  ("  testamenta  simultanea  "), 
which  were  those  by  which  several  persons  willed  their  property 
by  one  and  the  same  instrument,  there  were  distinguished  as  sub- 
varieties  of  the  joint  testament,  mutual  wills  ("  testamenta 
reciproca  ")  and  mutually  conditional  ("  korrespektive  ")  wills. 
In  the  former,  two  persons  appointed  each  other  mutually  as 
heirs,  or  otherwise  remembere(i  one  another.  In  the  latter  the 
two  dispositions  were  so  dependent  upon  one  another  that  the 
one  testament  stood  or  fell  with  the  other.  The  present  Civil 
Code,  following  the  example  of  the  Prussian  "  Landrecht"  and 
the  Austrian  Code,  has  recognized  such  joint  testaments  between 
spouses.  In  the  common  and  in  the  Saxon  law  they  were  recog- 
nized without  qualification  ;  in  the  French  law,  on  the  other  hand, 
they  were  prohibited  in  all  cases.  The  Swiss  Civil  Code  does  not 
recognize  them. 

§113.  The  Executor. 1  (I)  The  Older  Law.  —  The  institute  of 
the  trustee  ("  Trcuhiinder  ")  or  Sahnann,  which  we  meet 
with  in  its  most  ancient  form  in  the  Prankish  adoption  ("  aflfato- 
mie  ")  and  in  the  Lombard  "  gairethinx  "  (supra,  pp.  741  et  seq.) 
was  placed  at  the  testator's  service  in  the  most  liberal  manner 
by  the  medieval  law.  In  the  okler  period,  in  which  testaments 
were  unknown,  — i.e.  until  about  the  1100  s,  —  it  was  gifts  made 
mortis  causa  for  the  good  of  the  donor's  soul,  "  donationes  pro 
anima  ",  that  were  frequently  consummated  with  the  inclusion 
of  a  Salmann.  Inasmuch  as  the  "  traditio  carta?  "  that  was  the 
effective  element  in  these  transactions  usually  took  place  in  the 
church  as  a  "  traditio  super  altare  ",  there  arose  in  the  case  of  the 
donor's  incapacity,  —  and  of  course  men  frequently  resolved  to 

^  Beseler,  "Von  den  Testamentsvollziohorn",  in  Z.  d(Hit.  R.,  TX  (184.5), 
144-222;  Alfred  Schnltzc,  "Die  l;in<j:()l);u-(lis('lK'  TrciilKuui  und  ihro  IJmbil- 
dunij  zur  Testamentsvollstrcekiini;:",  no.  A'i)  (IS'.)."))  of  (lirrlcc's  "Untor- 
suchunpfen" ;  Jicijcrle,  "(jrundcifjentumsvorhiiltnissc  und  Biirpfcrrc^oht 
im  niitlclaltprlir-hcn  Konstan/,,  I,  1:  Das  Salinannriu'ccht"  (1000); 
Caillciner,  "Orijijincs  ot  dc'vcloppoinont  do  rcxrcution  Icstainontaire, 
epoque  franquc  ct  movon  a{?e"  (lOOl ) ;  Mnilland,  "Triisl  und  Corporation" 
in  Gninhul's  Z.  Priv.  hff.  II.,  XXXII  (1904).  1-70;  llci/nuttin,  " Gcschiif ts- 
anwaltG  und  Trruhanflg(>s('llsf*haflon  als  Vonn(')K('nsvor\valtor  nach  engli- 
.sohom  und  doutschem  Ilccht,  cine  rcfhtsvorglcichcndo  mid  rechtspolitische 
BetrafhtiinK",  in  "  Fe-stpahc  f iir  K.  (Jiitcrbofk"  (1910).  .%1 -.500.  "Trustee 
iind  Truslcc  Company  im  dcutschon  Rochtsvcrkclir",  in  "  Fosteabc  fiir 
BruiHicr"  flOlO),  47;i-.>i7 ;  Ifolmes,  "Executors  in  earlier  English  Law", 
in  "Scleet  Es.says  in  A.  A.  L.  H.",  Ill,  737  et  seq.;  Caillciner,  "The  Exec- 
utor in  England  and  on  the  Continent",  in  ibid.,  746  et  seq. 

754 


Chap.  XVI]  TESTAMENTARY    SUCCESSION  [§  113 

make  such  gifts  "pro  anima  "  in  the  very  face  of  death,  —  the 
necessity  of  entrusting  a  third  person  with  the  performance  of  the 
act  of  tradition.  Moreover  it  was  a  favorite  practice,  which  echoed 
the  old  theory  of  the  death-portion,  to  have  the  tradition  take 
place  on  the  day  of  the  burial  as  a  "  donatio  pro  sepultura  ", 
in  which  case,  since  the  donor  was  no  longer  among  the  living,  a 
trustee  ("  Treuhander  "),  an  "  eleemosinarius  ",  was  again  neces- 
sary. And  the  emplo;yTnent  of  such  a  trustee  might  also  recom- 
mend itself  because  the  donor,  in  case  he  had  concluded  the  con- 
tract with  the  trustee  only,  and  not  directly  with  the  ecclesiastical 
foundation,  could  more  easily  rescind  the  contract.  The  posi- 
tion of  the  "  Treuhander  "  became  still  more  important  in  the 
1100  s  and  1200  s  when  unilateral  "  letzwillige  "  ("  of  last  will  ") 
dispositions,  —  i.e.  testaments,  —  appeared  side  by  side  with, 
and  later  in  place  of,  the  bilateral  contractual  gift  mortis  causa, 
so  that  the  Salmann  became  an  actual  executor.  True,  the  carry- 
ing out  of  a  "  donatio  pro  anima  "  was  still  a  regular  part  of  his 
obligations,  since  these  new  testaments  usually  contained  such 
gifts;  indeed,  as  already  mentioned,  they  were  at  first  exclusively 
unilateral  testamentary  endowments  for  sacred  vessels  and  vest- 
ments. But  the  duties  of  the  Salmann  increased  in  pace  with  the 
broadening  scope  of  the  testament.  They  were  entrusted  with 
the  liquidation  of  the  decedent's  estate ;  they  were  bound  to  per- 
form his  last  will,  to  undertake  the  distribution  of  the  estate,  and 
incidentally  thereto  to  compromise  the  hostile  interests  of  the 
heirs ;  they  were  appointed  to  protect  the  will,  against  legatees  and 
especially  against  the  heirs,  but  also  against  third  persons;  fre- 
quently they  were  charged  at  the  same  time  with  the  guardian- 
ship of  the  widow  and  children  ;  and  the  duty  of  attending  to  the 
burial  was  also  laid  upon  them.  In  this  way  these  executors  — 
Salmanns,  "  Seelgerater  ",  "  testamentarii  ",  "  eleemosinarii  ", 
"  wadiarii  ",  "  fideiussores  ",  "  spondarii  ",  "fideicommissarii  ",  or 
however  else  they  might  be  known  —  played  a  very  important  part 
during  the  Middle  Ages  in  all  parts  of  the  Occident.  This  was 
very  especially  true  in  England,  where  there  was  developed  from 
them  the  institute  of  the  trust,  peculiar  to  the  English  law,  though 
it  merely  applies  in  a  special  manner  legal  ideas  universal  in  Ger- 
manic law.  The  executor,  in  accord  with  the  principles  of  the 
Germanic  law  of  things,  and  like  the  Salmann  who  was  employed 
in  gifts  mortis  causa  and  in  conveyances  inter  vivos,  received  the 
seisin,  namely  an  exclusive  seisin,  in  the  chattels  of  the  estate,  — 
a  legal  power  under  the  law  of  things  that  had  the  appearance  of 

755 


§  113]  THE    LAW    OF    INHERITANCE  [BoOK   V 

ownership  qualified  by  the  end  to  which  the  property  was  appointed, 
and  which  diti'ored  from  complete  ownership  merely  in  that  he 
was  entitled  to  exercise  his  rights  solely  for  the  purpose  of  perform- 
ing the  last  will  of  the  testator.  Even  long  after  the  appearance 
of  the  testament,  therefore,  either  an  immediate  seisin  or  one 
subject  to  the  condition  precedent  of  the  donor's  death  was  con- 
veyed to  the  executor,  as  to  the  old  Salmann  in  gifts  mortis  causa, 
by  a  tradition  in  the  form  of  a  symbolic  investiture.  Though  the 
executor  was  thus  endowed  with  extensive  powers  and  his  posi- 
tion made  very  strong  even  as  against  the  heirs,  certain  securities 
existed  against  the  misuses  of  this  absolute  power,  on  the  one 
hand  in  the  liability  of  the  executor  to  the  heirs,  —  though  this 
is  not  exactly  common  in  the  sources,  —  and  still  more  in  the 
fact  that  his  position  was  regarded  as  a  public  oflSce.  He  was 
therefore  not  only  required  to  deliver  an  inventory  and  to  publish 
the  testament,  —  and  under  the  Canon  law,  also  to  take  oath  and 
give  security,  —  but  was  otherwise  subjected  to  a  strict  oversight 
of  the  public  authorities  which  the  ecclesiastical  and  secular  courts 
vied  in  enforcing. 

(II)  The  Modem  Law.  —  This  institute  of  the  executor,  which 
was  quite  unknown  to  the  Roman  law,  was  generally  retained  in 
Germany  after  the  Reception,  as  in  other  countries.  It  also  passed 
into  all  the  modern  codes,  including  the  present  Civil  Code.  The 
Code  Civil  alone,  which  was  here  influenced  by  the  Roman  law, 
still  contains  only  the  barest  trace  of  this  institute,  once  wide- 
spread in  the  old  French  as  in  other  Germanic  legal  systems. 
But  inasmuch  as  the  Roman  concepts  did  not  suffice  to  explain 
it  and  the  Germanic  ideas  that  underlay  it  long  remained  undis- 
covered, many  controversies  resulted  concerning  its  legal  nature. 
The  executor's  powers  were  explained,  now  as  a  mandate  of  the 
testator  that  continued  effective  after  his  death,  —  notwithstand- 
ing that  this  was  irreconcilable  with  a  unilateral  testamentary  nom- 
ination of  an  heir,  which  was  particularly  common,  —  and  now  as 
a  statutory  right  of  representation  in  the  nature  of  a  guardian's, 
or  again  as  a  special  office  with  which  he  was  entrusted. 
Other  scholars  explained  the  executor  as  a  mandatary  of  the  heirs, 
notwithstanding  that  it  was  precisely  his  independence  in  relation 
to  them  that  was  the  essence  of  his  office ;  or  as  a  representative 
of  the  decedent's  estate,  as  such.  It  follows  from  the  history  of 
the  institute  that  the  executor  has  always  been  a  trustee  ("  Treu- 
hander  ")  in  the  sense  of  the  Germanic  law,  and  is  such  to-day ; 
that  is,  he  is  not  a  representative  of  another's  right,  but  a  trustee 

756 


Chap.  XVI]  TESTAMENTARY   SUCCESSION  [§  113 

("  Vertrauensmann  ")  of  the  testator  endowed  with  independent 
rights,  who  exercises  such  rights  in  his  own  name  ahhough  in  the 
interest  of  the  heirs.  For  this  independent  right  is  hmited  in 
the  old  way  by  the  requirement  that  it  must  be  exercised  in  accord 
with  the  will  of  the  testator.  In  fact  there  is  still  visible  in  the 
modern  executor  a  plain  trace  of  the  primitive  idea  of  a  representa- 
tion of  the  dead.^  Whether  an  executor  shall  or  shall  not  be  named 
depends  upon  the  testator's  will ;  and  his  powers  are  also  deter- 
mined in  the  same  manner.  Statutory  rules  take  effect,  in  essen- 
tial matters,  only  in  default  of  and  as  a  supplement  to  the  testa- 
tor's directions.  The  executor  is  responsible  to  the  heirs  and 
legatees  for  the  performance  of  his  obligations ;  but  he  is  also 
subject  to  the  continual  oversight  of  the  probate  court. 

^  Brunner,  "  Geschichte,"  I  (2d  ed.),  40. 


757 


§114] 


THE   LAW    OF   INHERITANCE 


[Book  V 


CHAPTER   XVII 

SPECIAL  RULES  OF   SUCCESSION   IN  THE  INHERITANCE  OF 

LANDS 


§  114,    The    Inheritance    of    Fiefs. 
Feudal  Snoeession. 
I.    The  Older  German 
Law. 
II.    The  Lombard  and  the 
Modern  Law. 
§  115.    Succession    to    Family    Es- 
tates   and    under    family 
Trust-Entails. 
I.    Entailed     Family     Es- 
tates. 
XL    Family  Trust-Entails. 
(1)  "Juniorat." 


(2)  "Majorat"   in   the 
broad  sense. 

(A)  "Seniorat." 

(B)  "Majorat"    in 

the     narrow 
sense. 

(C)  Primogeniture, 

secundogeni- 
ture,  etc. 
§116.    Succession   in    Peasant    Es- 
tates. 


§  114.  The  Inheritance  of  Fiefs.  Feudal  Succession.^  (I) 
The  Older  German  law.  —  As  has  already  been  remarked  (supra, 
pp.  373  ct  seq.)  in  the  general  description  of  feudal  tenure,  a  fief 
was  conveyed  only  for  such  time  as  both  parties  to  the  feoffment 
might  live,  since  it  presupposed  a  personal  relation  of  fidelity 
between  lord  and  vassal.  When  the  heritable  character  of  the 
fief  later  became  established  there  was  developed  in  consequence 
of  its  military  character  a  special  law  of  feudal  inheritance,  which 
differed  in  important  respects  from  the  general  principles  of  the 
inheritance  law  and  which  led  to  a  sharp  distinction  between 
feudal  succession  in  the  fief  and  succession  in  the  fee.  More- 
over, the  circle  of  those  who  were  entitled  to  succeed  as  feudal 
heirs  was  originally  very  narrowly  limited  within  the  body  of 
kinsmen  capable  of  feudal  services  (pp.  337  ct  seq.).  In  the  begin- 
ning, as  already  mentioned,  only  the  son  of  the  vassal  seems  to 
have  been  capable  of  succession  to  the  estate ;  ^  it  was  only  later 
that  a  right  of  inheritance  was  extended  to  all  descendants,  such 
as  was  expressly  recognized,  for  example,  in  an  imperial  decision 
delivered  by  King  Albrecht  in  1299.  Herital  rights  of  collateral 
kindrofl  were  unknown  to  the  German  feudal  law.  It  was  only 
by  feudal  contracts  ("  Lehnsvertrage  ")  that  luTital  rights  could 
be  given  to  more  remote  kindred.     Since  partition  of  the  fief 

1  See  Ernst  Mayer,  "Der  germanische  Uradel"  (supra,  p.  SSf)),  106 
et  seq. 

2  "Sachs.  Lehnr.",  21,  §  3. 

758 


Chap.  XVII]  SPECIAL  RULES   OF   SUCCESSION  [§  114 

would  have  lessened  its  capacity  to  satisfy  feudal  services,  the 
general  principle  of  the  inheritance  law  that  the  heritage  must 
be  divided  among  the  heirs  of  equal  degree  could  not  be  applied 
in  feudal  succession.  Unless  a  feoffment  was  made  in  collective 
hand  {supra,  p.  340)  the  lord  might  enfeoff  only  one  of  the  feudal 
heirs.  If  no  such  feoffment  was  made,  then  ordinarily  the  oldest 
son  came,  in  time,  to  receive  the  investiture ;  a  rule  which  was 
established  in  the  main  by  contract  but  was  also  recognized  to 
some  extent  by  statute. 

(II)  The  Lombard  and  the  Modern  Law.  —  Unlike  the  German 
feudal  law,  that  of  the  Lombards  extended  feudal  succession  not 
merely  to  descendants  but  also  to  collaterals.  This  was  already 
the  rule  of  the  feudal  Constitution  of  the  Emperor  Konrad  II, 
of  1037,^  and  it  was  "  the  starting  point  in  the  succession  system 
of  the  '  Libri  Feudorum  ',  and  generally  of  the  later  feudal  law, 
according  to  which  every  right  of  inheritance  was  limited  and 
controlled  by  the  concept  of  the  '  feudum  paterum  ',  '  ervelen.'  "  ^ 
In  consequence  of  this  principle,  ascendants  of  a  feudal  tenant 
were  excluded  in  all  cases  from  succession  to  the  fief,  because  the 
feoffment  of  the  deceased  did  not  affect  them.  Therefore,  also, 
only  those  collateral  kindred  had  a  right  of  succession  who  were 
themselves  descendants  of  an  earlier  feudal  tenant.  Collaterals 
who  were  not  the  issue  of  a  former  tenant,  and  to  whom  the  fief 
was  therefore  a  "  feudum  novum  ",  were  not  included  among 
kinsmen  entitled  to  inherit.  An  extension  of  herital  rights  in 
favor  of  other  collaterals  could  be  effected  by  contract  only. 
This  rule  was  also  received  into  Germany,  and  in  Mecklenburg 
led,  as  already  mentioned  {supra,  p.  346),  to  the  institute  of 
"  Reversal  "-  cousins.  Equally  in  the  Lombard  feudal  law  and 
in  the  later  feudal  common-law  of  Germany  many  doubts  resulted 
from  this  admission,  —  albeit  in  theory  only  qualified,  —  of  col- 
lateral kindred.  According  to  the  Lombard  law  the  descendants 
of  the  last  tenant  succeeded  first  to  the  inheritance,  in  accordance 
with  the  principle  of  representation.  Later,  since  ascendants 
were  excluded,  the  collaterals  succeeded  (the  brothers  in  the  first 
place)  on  the  ground  that  the  fief  was  as  to  them  a  "  feudum 
paternum  " ;  here  again  the  sons  of  dead  brothers  succeeded  in 
their  place.  Finally,  the  more  remote  collaterals  succeeded  in 
such  manner  that  those  kindred  were  preferred  who  had  the  near- 

1  "Edietum  de  benefieiis  regni  italiei "  (Lib.  Feud.,  5.  1,  e.  4;  M.  G.,  Con- 
stitutiones,  I,  90). 

-  H easier,  "Institutionon",  II,  G14. 

759 


§  114]  THE   LAW    OF   INHERITANCE  [BoOK  V 

est  common  male  ancestor  with  the  deceased,  and  again,  as  among 
these,  those  of  nearer  in  preference  to  those  of  more  remote  degree. 
Bnt  it  was  precisely  this  preferment  of  the  "  Linie  "  within  the 
collateral  kindred  in  the  larger  sense,  —  in  other  words  the  recog- 
nition of  the  parenteiic  or  "  lineal-gradual  "  system,  —  that  was 
comhated,  it  being  alleged  that  the  Libri  Feudornm  embodied  a 
different  system.  In  the  one  view,  which  was  formerly  followed 
by  the  imperial  courts,  the  preferment  of  the  line  was  entirely 
disregarded  and  the  degree  of  kinship  between  the  decedent  and 
the  more  remote  collaterals  was  made  decisive  (pure  "  gradual  " 
succession  of  the  Roman  law).  In  the  other  view,  which  prevailed 
in  some  princely  houses,  advantages  in  degree  of  kinship  were 
disregarded,  and  the  next  line  called  to  the  inheritance  without 
regard  to  the  degree  of  kinship  and  with  absolute  enforcement  of 
the  right  of  representation  (pure  "  lineal  "  succession).  There 
can  be  no  doubt,  however,  that  the  "  lineal-gradual  "  system  of 
succession,  that  is  the  parentelic  system,  alone  satisfied  the  require- 
ments of  the  "  Libri  Feudorum  ".  In  Germany,  also,  this  found 
wide  acceptance,  and  according  to  the  better  view  was  regarded 
as  the  common  law ;  being  observed  as  such,  for  example,  in  the 
judicial  practice  of  Mecklenburg,  Brunswick,  Hamburg,  and 
Wiirttemberg.  It  was  frequently  united  with  the  principle  of 
primogeniture,  so  that  as  between  several  lines  of  equal  degree 
preference  was  given  to  the  line  of  the  first-born,  and  within  that 
again  to  the  first-born.  The  authority  of  common  law  was  also 
claimed,  by  many  scholars,  even  for  the  other  theories ;  and  some 
statutes  recognized  pure  "  lineal  "  succession,  —  for  example  the 
Prussian  "  Landrecht  "  and  the  Bavarian  Feudal  Edict.  Under 
the  Lombard  feudal  law  different  principles  prevailed  according 
as  a  descendant  or  a  collateral  kinsman  (an  "  agnate  "  in  the  sense 
of  the  feudal  law)  succeeded,  the  death  of  the  feudal  tenant  giv- 
ing him  succession,  also,  in  such  tenant's  allodial  lands.  Such 
an  "  agnate  "  might  refuse  the  allodial  estate  and  take  the  fief 
alone,  in  which  case  he  became  liable,  not  for  the  general,  but 
only  for  the  feudal  obligations  of  the  deceased.  But  the  descend- 
ant had  no  such  right  to  refuse  the  estate  ;  on  the  contrary  he  was 
bound  to  accept  the  allodium  with  the  fief,  and  therefore  all  the 
liabilities  of  the  deceased  as  well.  The  power  which  was  thus 
accorded  to  the  "  agnate  "  was  justified  by  the  fact  that  he  did 
not  acquire  the  fief  from  the  last,  but  rather  from  the  first,  tenant ; 
that  is,  from  the  common  male  ancestor  of  the  "  agnate  "  and  the 
vassal  last  deceased,  or  as  it  was  said  "  ex  pacto  et  providentia 

760 


Chap.  XVII]  SPECIAL   RULES   OF   SUCCESSION  [§  115 

maiorum."  This  distinction,  although  not  everywhere  accepted, 
passed  over  into  the  common  law,  notwithstanding  that  the  succes- 
sion of  descendants  was  also  conceived  of  later  as  a  "  successio  ex 
pacto  et  providentia  maiorum."  Wherever  the  right  of  renun- 
ciation was  also  given  to  descendants  it  was  therefore  said,  — in 
order  to  remain  consistent  with  the  "  Libri  Feudorum  ",  —  that 
there  existed  a  "  family  "  ("  Stamm-  ")  fief,  a  "  feudum  ex  pacto 
et  providentia  maiorum."  This  was  contrasted  with  a  heritable 
fief,  a  "  feuda  hereditaria  ",  in  the  case  of  which  the  right  of  re- 
nunciation was  denied  equally  to  collaterals  and  descendants. 
However,  this  distinction  remained  a  much  debated  one. 

When  the  fief  was  not  willed  to  one  alone  of  several  feudal 
heirs  in  equal  degree,  each  generally  succeeded  to  a  part  under 
the  Lombard  feudal  law,  according  to  the  principles  of  quotal  co- 
ownership  (supra,  p.  343) ;  but  in  German  legal  systems  succes- 
sion in  collective  hand  was  commonly  preserved.  However,  it  was 
often  provided,  also,  that  only  one  should  receive  the  fief,  and 
indemnify  the  others ;  in  which  case,  in  some  systems,  fixed 
principles  in  the  nature  of  primogeniture  or  of  entail  applied. 
In  Mecklenburg,  in  case  one  of  several  feudal  heirs  demands  a 
dissolution  of  the  herital  community,  the  one  who  shall  take  the 
estate  is  determined  by  lot  ("  Kavehmg  ").  The  estate  is  then 
assigned  him  at  a  "  reasonable  and  brotherly  price  ",  and  the  value 
thus  determined  serves  as  a  basis  in  determining  the  indemnity 
due  to  the  others.^ 

§  115.  Succession  to  Entailed  Family  Estates  and  under  Family 
Trust- Entails.  (I)  That  the  Entailed  family  estate  ("  Stamm- 
giitcr ")  of  the  greater  noble  houses,  as  estates  limited 
("  gebundene  ")  by  an  irrevocable  right  in  expectancy  in  favor 
of  kindred  entitled  to  the  inheritance,  were  subjected  by  autono- 
mous enactment  to  special  rules  of  succession,  has  already  been 
remarked  (supra,  pp.  308  etseq.).  Ordinarily  a  rule  of  individual 
succession  was  established,  and  in  a  majority  of  cases  primogeni- 
ture. An  indemnity  was  required  for  after-born  sons  and 
daughters  which  was  ordinarily  less  than  the  compulsory  portion 
required  in  other  systems. 

(H)  Succession  under  family  trust-entails  (fideicommissa)  was 
likewise  subjected,  as  already  mentioned  (supra,  p.  315),  to  a 
special  rule  adapted  to  the  purpose  of  the  institute,  and  based 
upon  the  feudal  principle  of  "  successio  ex  pacto  et  providentia 
maiorum."     Ordinarily  the  donor  appoints  the  order  of  succes- 

1  Stohbe,  V,  347. 
761 


§  115]  THE    LAW    OF    INHERITANCE  [BoOK   V 

sion  for  the  fideicommissiim  in  the  deed  of  donation.  If  this  is 
not  done,  and  if  no  alternative  statutory  order  is  provided,  then 
the  ordinary  statutory  rule  of  succession  appHes.  Succession 
under  fideicommissa  is  almost  always  individual  succession  with 
preferment  of  greater  age  ("  Majorat  "  in  the  wider  sense),  as 
contrasted  with  the  preferment  of  lesser  age  ("  Juniorat "), 
which  occurs  only  rarely  in  family  fideicommissa.  This  "  ma- 
jorat ",  in  the  broad  sense,  may  assume  various  forms : 

{A)  " Seniorat  "  (seniority).  In  this  system  the  oldest  member 
of  the  entire  family  succeeds,  without  regard  to  the  line  or  degree 
of  kinsliip.  Modern  statutes,  as  for  example,  the  Prussian 
"  Landrecht  ",  have  abolished  seniority  or  have  excluded  it  by 
prescribing  other  systems. 

{B)  "Majorat"  in  the  narrow  sense.  —  In  this  the  estate 
goes  to  the  nearest  kinsman  of  the  last  occupant  capable  of  inherit- 
ing, according  to  the  degree  of  kinship.  As  between  several  per- 
sons entitled  in  the  same  degree  preferment  is  given  to  greater  age. 
In  the  application  of  this  principle  in  its  pure  form  the  right  of 
representation  plays  no  part,  so  that  for  example  the  younger 
son  of  the  last  possessor  precedes  a  grandson  of  an  older  son  already 
dead. 

(C)  Primogeniture,  which  is  also  the  rule  under  family  trust- 
entails.  In  this,  in  accord  with  the  principles  of  the  parentelic 
system,  the  nearer  parentelic  group  precedes  the  more  remote, 
and  within  each  parentelic  group  the  elder  line  precedes  the 
younger ;  at  the  same  time  the  right  of  primogeniture  prevails, 
along  with  absolute  enforcement  of  the  right  of  representa- 
tion. Therefore  the  son  and  grandson  of  an  elder  son  precede  a 
younger  son  of  the  last  possessor.  In  case  cognates  possess  a 
subsidiary  herital  right,  then,  in  case  of  complete  extinction 
of  the  male  line,  that  cognate  succeeds  to  the  inheritance  who 
is  the  nearest  kinsman,  capable  of  inheritance,  of  the  last  pos- 
sessor; whence  the  preferment  of  "  Erbtochter  "  and  their  de- 
scendants to  "  regressive  "  female  heirs  and  their  issue  (supra, 
p.  749).  Once  the  fideicommissum,  however,  has  passed  to  the 
female  line,  the  preferment  of  males  again  becomes  immediately 
applicable. 

Secundo-,  tertiogeniiure,  etc.  are  family  fideicommissa  that  are 
established  for  the  second,  third,  etc.  line  of  a  family.  Therefore, 
if  one  line  of  entail  becomes  extinct  the  fideicommissum  passes 
to  the  second.  If  all  become  extinct  it  reverts  to  the  main 
("  Haupt-  ")  line. 

7G2 


Chap.  XVII]  SPECIAL   RULES   OF   SUCCESSION  [§116 

§  116.  Succession  in  Peasant  Estates.^  —  Even  in  the  case  of 
peasant  holdings  the  general  principle  prevailed,  theoretically, 
in  the  Middle  Ages,  that  heirs  of  equal  degree  divided  the  heritage. 
However,  as  already  mentioned  (supra,  pp.  709  et  seq.)  attempts 
were  made  in  various  ways  to  minimize  the  danger  to  the  free  agri- 
cultural population  that  was  involved  in  a  parcellation  of  land. 
When  land  was  inherited  by  common  heirs  it  was  customary  in 
many  regions  to  abandon  it  to  one  of  them,  the  so-called  "  Anerbe  " 
("  single  ")  heir ;  but  the  others,  originally,  might  remain  sitting 
on  the  land  until  their  rights  were  redeemed.  Again,  the  father' 
frequently  designated  one  of  his  sons  as  his  principal  ("  Haupt-  ") 
heir,  either  himself  indemnifying  the  other  sons  at  the  same  time, 
or  imposing  upon  such  principal  heir  the  duty  to  indemnify  them. 
The  impartibility  of  the  estate  might  also  be  established  by  con- 
tract. In  regions  subject  to  manorial  law  it  was  customary  for 
the  lords  to  promulgate  for  their  manors  independent  rules  of 
inheritance  which,  in  the  lord's  interest,  excluded  partition. 
There  was  thus  developed,  —  for  the  most  part  by  the  growth  of 
customary  law,  but  in  places  by  virtue  of  statutory  rules,  —  a 
herital  system  for  peasant  estates  which  was  the  counterpart  for 
such  holdings  of  the  special  order  of  succession  in  noble  houses, 
and  which  was  ordinarily  known  as  "  Anerbenrecht  "  (system  of 
single  heirship).  In  some  rural  districts  this  system  was  main- 
tained in  modern  times,  and  down  even  to  the  present  day.  It 
was  adopted  and  regulated  in  many  Territorial  ordinances  of  the 
1600  s  and  1700  s  ;  for  example  in  Schleswig-Holstein,  Brunswick, 
Lippe,  Schaumburg-Lippe,  Altenburg,  Waldeck,  and  in  the  ad- 

^  V.  Miaskowski,  "Das  Erbreeht  und  die  Grundeigentumsverteilung  im 
deutsehen  Reiche",  in  S.  Ver.  Soz.  Pol.,  XX  (1882)  and  XXV  (1884). 
Frommhold,  "Die  reehtliche  Natur  des  Anerbenrechts "  (1886);  v. 
DuUzig,  op.  cit.,  p.  713  supra;  Hermes,  art.  "Anerbenrecht",  in  H.  W.  B. 
Staatsw.,  I  (3d  ed.,  1909),  470-481;  Sering,  art.  "Vererbnng  des  liind- 
lichon  Grundbesitzes",  in  W.  B.  der  Volksw.,  II  (3d  ed.,  1911),  1137-1146, 
and  "Erbreeht  und  Agrarverfassung  in  Sclileswig-Holstein  auf  geschicht- 
lieher  Grundlage,  mit  Beitriigen  von  Lerch,  Petersen  und  Biiehner",  Vol. 
VII  (1908)  of  "Die  Vererbungdes  liindlichen  Grundbesitzes  im  Konigreich 
Preussen";  with  which  compare  Pappenheim  in  Z'.  R.  G.,  XXX  (1909), 
429-436;  Guggenheim,  "Das  biiuerliche  Erbreeht  des  schweizorischen 
Zivilgesetzbuchs  verglichen  mit  dem  kantonalen  Recht  und  den  deutsehen 
Anerbenrechten,  in  "Ziirieher  Beitriige  zur  Rechtswissenschaft  ",  XXV 
(1909)  ;  Clasen,  "  Sehleswig-Holsteinisches  Anerbenrecht  in  seiner  ge- 
schichtlichen  und  heutigen  Gestaltung"  (Rostock  dissertation,  1912); 
Rorig,  "  Agrargeschichte  und  Agrarverfassung  Schleswig-Holsteins,  vor- 
nehmlieh  Ostholsteins",  in  Z.  Ver.  Liibeck.  G.  A.  K.,  XIV  (1912),  137- 
150 ;  Reineke,  "Die  Entwieklung  des  biiuerliehen  Erbreehts  in  der  Provinz 
Westfalen  von  1815  bis  heute",  in  E.  Frhr.  v.  Kerckerinck  zn  Borg,  editor, 
"Beitriige  zur  Geschichte  des  westfalischen  Bauernstandes"  (1912),  107- 
163. 

763 


§  116]  THE    LAW    OF    INHERITANCE  [BoOK   V 

ministrative  district  of  Cassel.  This  law  of  single-heirship,  thus 
handed  down  from  ancient  times,  was  very  commoidy  treated  as 
a  "  juniorat  ",  in  Schleswig-Holstein  mainly  as  a  "majorat",  and 
more  rarely  as  a  "minorat."  In  some  localities,  although  by  no 
means  everywhere,  it  was  a  compulsory  right,  testamentary  dis- 
positions to  the  contrary  and  partition  of  the  land  being  prohibited. 
The  extent  to  which  the  single-heir  was  preferred  varied.  Fre- 
quently, his  right  took  the  form  of  a  special  right  of  inheritance 
in  the  estate,  as  compared  with  which  the  other  brothers  and  sisters 
enjoyed  either  a  mere  ordinary  right  of  inheritance  in  the  re- 
mainder of  the  heritage,  or  at  most  a  right  to  be  indemnified  out 
of  the  land  ("  Hof  "). 

It  is  possible  that  the  rule  of  ultimogeniture  ("  Jiingstenrecht  ") 
goes  back,  in  origin,  to  the  youngest  son's  right  of  choice  indicated 
in  the  Sachsenspiegel  {supra,  p.  709). 

The  principle  of  the  testator's  dispositive  freedom,  which 
acquired  supremacy  with  the  reception  of  the  Roman  law,  was 
necessarily  hostile  to  the  rights  of  the  single-heir.  In  fact  it  had 
already  restricted  the  territory  within  which  this  prevailed  to  one 
of  relatively  slight  extent  when  the  measures  of  agricultural  re- 
form that  were  adopted  at  the  beginning  of  the  1800  s  also  deprived 
the  system  of  its  essential  material  basis ;  and  modern  theories 
of  economics  denied  it  any  sound  justification  in  principle.  Con- 
sequently, in  the  greater  number  of  German  States  it  was  done 
away  with  either  simultaneously  with  the  promulgation  of  the 
statutes  for  the  emancipation  of  the  peasants  or  soon  thereafter. 
As  a  custom  of  the  peasantry  it  continued  to  enjoy  the  miserable 
existence  of  an  institute  that  was  gradually  losing  all  vitality 
and  was  apparently  destined  to  complete  disappearance.  In  the 
second  half  of  the  1800  s,  however,  a  different  view  became  pre- 
dominant ;  one  which  had  its  origin  precisely  in  these  old  regions 
of  single-heirships  in  Northwestern  Germany.  This  view  regarded 
the  common  law  of  inheritance  as  a  great  obstacle  to  the  preser- 
vation of  a  strong  peasantry.  It  was  now  endeavored,  therefore, 
to  fortify  and  further  develop  the  principles  of  the  system  of  single- 
heirship  by  special  legislation.  For  this  purpose,  after  Bavaria 
and  Baden  had  led  the  way  in  the  1850  s  without  any  great  suc- 
cess, there  was  introduced,  at  first  only  in  certain  districts  of 
Prussia  and  other  States,  an  "  indirect  "  or  "  mediate  "  intestate 
right  of  single-heirship  so  devised  as  to  apply  exclusively  to  such 
holflings  as  had  been  entered  at  the  instance  of  their  owners  in  a 
"roll"   of  the  estate   ("  Hoferolle  ",   "  Landguterrolle  ").     The 

764 


Chap.  XVII]  SPECIAL  RULES  OF  SUCCESSION  [§116 

model  for  this  system  was  found  in  a  Hanoverian  Ordinance  of 
Rural  Estates  of  1874,  which  was  followed  by  similar  ordinances 
in  Lauenburg,  Westphalia,  the  administrative  district  of  Cassel, 
Brandenburg,  Schleswig-Holstein,  and  Silesia,  as  well  as  by  "  Hofe- 
gesetze "  in  Oldenburg  and  in  Bremen.  Inasmuch,  however, 
as  this  system  proved  unsatisfactory,  a  "  direct  "  right  of  single 
heirship  was  either  introduced  anew  or  newly  regulated  by  more 
modern  statutes.  This  was  done  in  Prussia  (1896)  in  the  case  of 
lands  subject  to  rent  charges  ("  Rentengiiter ")  and  colonial 
("  Ansiedelungs-  ")  estates  {supra,  p.  289) ;  in  Westphalia  and 
in  five  administrative  circles  of  the  Lower  Rhine  (1898) ;  in  Baden 
(1888,  1898)  as  regards  impartible  manorial  estates  in  the  Black 
Forest ;  in  Brunswick  and  in  Schaumburg-Lippe.  In  Mecklen- 
burg single-heirship  and  impartibility  had  already  been  pre- 
scribed for  heritable  leaseholds  by  statutes  of  1869  and  1872. 
Under  these  statutes  certain  classes  of  estates,  which  are  spe- 
cifically described,  are  subject  by  rule  of  law  to  rights  of  single- 
heirship  that  take  immediate  effect  in  the  absence  of  specific 
testamentary  disposition.  Such  lands  are  noted  in  the  land- 
book,  at  the  instance  of  the  registry  ofiicials,  as  lands  sub- 
ject to  single-heirship.  Other  lands  subject  to  single-heirship 
may  be  registered  at  the  instance  of  the  parties  interested.  In 
this  form,  also,  the  right  of  single-heirship  is  "  a  special  rule  of 
succession  in  the  land  with  all  its  appurtenances  'V  but  it  is  not 
a  right  in  expectancy  that  restricts  the  testator.  He  is  entitled, 
in  the  first  instance,  to  designate  the  single-heir ;  in  default  of 
such  designation,  the  descendants  and  brothers  and  sisters  of  the 
decedent,  together  with  their  descendants,  become  entitled  in 
order  of  age,  with  preferment  of  the  male  sex.  In  many  places  a 
right  of  single-heirship  also  exists  in  favor  of  a  surviving  spouse. 
Co-heirs  have  a  claim  to  indemnity,  for  the  calculation  of  which 
exact  rules  are  prescribed.  Under  the  law  in  its  latest  form  an 
indemnification  that  remains  unpaid  may  be  registered  against  the 
land  as  a  rent.  The  Swiss  Civil  Code  has  endeavored  to  attain 
the  same  end  as  the  German  Code  by  the  provision  (§  620),  that 
in  case  a  cultivated  farm  is  included  in  the  estate,  and  one  of  the 
heirs  declares  his  willingness  to  undertake  its  management  and 
appears  fitted  to  do  so,  it  shall  be  assigned  to  him  as  a  whole,  in  so 
far  as  it  constitutes  a  natural  unity  for  purposes  of  agriculture, 
subject  to  the  indemnification  of  the  others.  If  the  neces- 
sary indemnities  would  charge  the  land  to  an  amount  exceeding 
^  Gierke  in  Holtzendorff-Kohler,  I,  558. 
765 


[§116  THE    LAW    OF    INHERITANCE  [BoOK  V 

three-fourths  of  its  calcuhited  value,  the  person  assuming  the 
management  may  demand  a  postponement  of  partition.  In  this 
case  the  co-heirs  constitute  a  community  of  collective  hand  in  the 
produce  (§  622). 


766 


INDEX 


Accession  of  fixtures,  433-434. 

Accident.     See  Liability. 

Acquests,  folk-law  period,  627-628 ; 
medieval  period,  630,  639,  640, 
641 ;  modern  period,  646,  647, 
653.     See  Marital  Property. 

Act  of  God.     See  Damages. 

Adoption,  by  father,  of  his  legitimate 
child,  43-44 ;  same,  the  basis  of 
his  mundium,  659 ;  adoption  by 
strangers,  660-662 ;  same,  and 
gifts  mortis  causa,  740-742  ;  same, 
to  create  artificial  heirs  (Frankish 
"affatomie"  and  Lombard  "gaire- 
thinx"),  189,  661,  741,  754. 

Adultery,  in  law  of  divorce  and 
mundium,  613,  615,  616;  617-618. 

"Affatomie."     *See  Adoption. 

Age  periods,  youth,  54-59  ;  old  age, 
61. 

Agistment,  553. 

Agrarian  reform,  enclosures,  124- 
125 ;  land  charges,  redemption 
of,  367,  368 ;  ownership,  doctrine 
of.  234;  peasant  holdings,  330- 
332,  347. 

Alienations,  restraints  on.  See 
Title. 

Aliens,  early  law  of  alienage,  73- 
77 ;  modern  law  of  alienage,  77- 
79  ;  right  of  hospitage,  74  ;  Jews 
as  aliens,  84;  "landsassiatus", 
76;    strangers  in  the  mark,  121. 

Allod,  181,  250,  309,  341,  346,  348, 
760. 

"Altenteil."     See  Succession. 

"Anefang"  procedure,  in  recovery 
of  lost  or  stolen  chattels,  411-414. 

"Anerbenrecht."     See   Succession. 

Animals,  damage  by,  see  Obliga- 
tions ;    occupancy  of  wild,  426. 

Annuities.     See  Rents. 

"Anstalt"  (foundation),  122,  153, 
154,  155,  159,  321,  738. 

Antichresis,  386. 

Apiculture,  law  of,  427. 

Apprenticeship,  559. 

Appurtenances.     See  Things. 

Associations  ("Genossenschaften"), 
generally,  110-159;  classification 
of,  112;  concept  and  nature, 
110-114,  151,  157. 

Medieval,    generally,    110-111, 
149-150,  151,  157-159,  230,  680; 


associations  in  strict  sense  ("Ge- 
nossenschaften"), 110,  113,  125- 
127,  136,  138,  146-147;  same, 
original  mark-associations  as,  120, 
149;  same,  sib  as,  114-116; 
associations  in  collective  hand 
("Gemeinderschaften"),  139-146, 
150-151,  234,  235-236,  2-59,  288, 
305,  307,  425,  587-588,  640,  694, 
695 ;  corporate       associations 

("Korpersehaften"),  29,  122-124, 
133,  135,  136;  same,  universities 
as,  138 ;  same,  of  knightage,  139, 
146,  147-150,  155,  288 ;  corpora- 
tion, Germanic  theory  of  the 
"  Korperschaf  t "  and  Roman 
theory  of  the  "Korporation", 
150,  151-159,  177;  distinction 
between  "  Genossenschaf  t "  and 
"Gemeinderschaft",  14,  146,  150- 
151;  between  "  Genossenschaf t " 
and  "Korperschaft",  112-114, 
119,  120,  122-124,  146,  147;  be- 
tween "Korperschaft"  and  "An- 
stalt" (foundation),  155;  between 
"Korperschaft"  and  "Korpora- 
tion", 113,  155,  177. 

Types  primarily  economic  in 
nature,  (1)  agrarian:  Alpine,  127; 
assart  unions,  111,  119,  126; 
farm-communities,  125-126 ; 

mark-associations,  118,  120-125; 
peasant,  118,  141-142;  sib,  115; 
vineyard,  127 ;  Avoodland,  126- 
127  ;  ownership  form  in  agrarian, 
236;  (2)  capitalistic,  136; 
(3)  dike,  127,  287-289;  sluice, 
290;  (4)  herital,  142-144,  145, 
236,  710;  (5)  hunting,  277; 
(6)  industrial,  135-136;  craft, 
128-135;  mining,  127,  294-296, 
301-302;  minters',  135;  trade- 
unions,  modern,  135;  salters', 
304;  (7)  transportation,  112, 
127-128;  port,  117;  (8)  water, 
associations  for  usufruct  of.  127, 
280,  285 ;  fishery  associations, 
127,  287. 

Types  primarily  political  in 
nature,  138-139;'  associations 
of  public  law,  144. 

Types  primarily  for  other  social 
ends,  commensal  associations,  130, 
136,  138 ;     ecclesiastical  brother- 


767 


INDEX 


hoods,  136;  household  associa- 
tions, 114,  115,  IIG,  140,  141, 
144-145,  G95 ;  sib  as  an  associa- 
tion, 114-110;  universities  as, 
137-138. 

Types  primarily  based  on 
vicinage,  115;  village  communi- 
ties, 117-118,  121,  123;  mark- 
associations  and  village  communi- 
ties distinguished,  117;  personal 
associations  of  peculiar  privileges 
in  hind  within  village  communi- 
ties, 124. 

.Sec  Collective  Hand  ;     Cor- 
poration;    Mark  Association, 
for  details. 
"Avunkulat."     See  Family. 

Bailments,  obligation  of  bailee, 
529-530,  and  see  Chattels  (re- 
covery of) ;  deUvery  in  modern, 
509. 

Bastards.     See  Children. 

Benefices.     See  Tenure. 

Betrothal,  generaUy,  597-600,  601- 
602;  legal  effects  of,  601;  be- 
trothal and  dower,  598,  601 ; 
self-betrothal,  its  effect  on  nuptial 
investiture,  602;  "sponsalia  de 
futuro"  and  "de  praesenti",  606- 
608.     See  ISIarriagk. 

Birth,  as  beginning  of  capacity  for 
rights,  13,  42-43,  45;  equality 
of,  the  basis  of  old  social  estates, 
92-94 ;  same,  in  modern  law  of 
the  high  nobiUty,  99-102 ;  legiti- 
mate, the  basis  of  paternal  power, 
659-(J60  ;  proof  of,  44  ;  registrv 
of,  44-45. 

Bdts,  65,  521-523,  527,  577,  579, 
614. 

Bottomry  pledge,  453-454,  489. 

Buildings,  as  movables,  166;  leases 
of,  334 ;  ownership  of,  apart 
from  soil,  172-173  ;  ownership  of 
separate  stories  of,  174 ;  servi- 
tudes in,  356. 

Burgliers,  estate  of  peasants  and, 
91. 

Canon  law,  "Canon  redinte- 
granda",  216;  Canonic  law  of 
family,  591;  of  Jewry,  86;  of 
kinship  reckoning,  719;  of  mar- 
riage, ()04-(i07 ;  of  succession, 
order  of,  731.     See  Divorce. 

Capacity,  legal,  dependent  on 
physical  strength,  70;  feudal, 
337;  for  betrothal,  (iO;  for  legal 
action,  42;  for  legal  action  by 
women,  69;  for  juarriage,  60; 
for  making  negotiable  pajxT,  60 ; 
for  rights,    13,  41-54,    (generally, 


41-42;  beginning  of,  42-46; 
determination  of,  46-54) ;  for 
testation,  60;  for  tort  liability, 
60.     See  Mundium. 

Cattle,  distraint  of,  442,  450; 
pledge  of,  peculiarities  in,  406, 
448 ;  sales  of,  peculiarities  in, 
550. 

"Cautio."     See  Documents. 

Chattels,  403-457 ;  distinguished 
from  land,  see  Things;  collec- 
tive ownership  of,  in  early  law, 
119,  425;  marital  eommunitv 
of,  630,  639,  640,  653;  medieval 
importance  of,  164-165,  and  see 
Towns;  prescription  for,  439- 
440 ;  registration  of  interests  in, 
sec  Publicity.  iSee  o/so  Dowry  ; 
Gifts;  Paraphernalia;  Title. 
Pledge  (and  mortgage)  of,  in 
old  law,  441-447;  in  modern 
law,  447-457 ;  real  liability  in 
pledge,  474-475 ;  registration  of 
pledge  rights,  446,  448,  453. 

Possession  and  seisin  of,  207, 
210,  404-407,  and  see  Possession  ; 
Seisin. 

Protection  and  recovery  of,  by 
self-help,  410,  460;  by  actions, 
407-424  ;  publieital  i)rinciple  of 
seisin  the  key  to  actions,  162, 
406,  408,  41.5,  419,  422;  Ger- 
manic distinction  between  volun- 
tarv  and  involuntarv  loss  of 
possession,  213,  408,  ^416,  419- 
420,  421,  422;  same,  chattel 
law  liere  different  from  land  law, 
408,  409  ;  same,  difference  ignored 
in  modern  law  in  favor  of  bona 
fide  acquirer.  421,  422,  423,  424, 
448 ;  physical  seisin  alone  pro- 
tected in  case  of  chattels,  incor- 
poreal seisin  also  in  case  of  land, 
408,  419;  four  exceptions  to,  or 
limitations  upon,  right  of  re- 
covery, —  Hansa  privileges,  418, 
Jews'  privileges,  418-419,  pur- 
chase in  market  overt,  413,  417- 
418,  and  voucher  to  warrant v, 
412,  418,  547-549;  finding,  lay 
of,  428-433;  "rei  vindicatio" 
in  the  common  law.  420. 

Actions  in  case  of  involuntary 
loss  of  possession  through  hiss  or 
theft,  old  law,  407-408.  410-416, 
417-420;  sam(\  modern  law, 
421-422;  alh)wance  of  actions 
here  was  inconsistent  with  law 
of  seisin.  408.  409,  415,  418; 
old  "ancfang"  action,  411-414; 
old  action  for  larcenv  or  robberv, 
410.  420;  following  the  trail, 
witli  hue  and  cry,  410 ;   increasing 


768 


INDEX 


protection  of  acquirer  of  lost  and 
stolen  chattels,  as  commerce  i?rew, 
41G;  receivers  of  stolen  goods, 
86,  415,  418. 

Actions  in  case  of  voluntary 
loss  of  possession,  general  prin- 
ciples, 407-409,  529-530;  («)  in 
medieval  law,  actions  by  bailor 
against  bailee,  529-530 ;  same, 
against  third  persons,  408-409, 
416-417 ;  same,  principle  of 
"Hand  wahre  Hand",  407^09, 
415,  416-417,  420,  439,  529,  (in 
pledges)  447,  448,  451 ;  principle 
did  not  imply  transfer  of  title  by 
non-owners,  437-438 ;  (6)  in 
modern  law,  420,  423-424 ;  prin- 
ciple of  "Hand  wahre  Haiid", 
420,  448,  (present  law)  423-424; 

(c)  mere  possessor  entitled  to 
actions     in     modern     law,     423 ; 

(d)  things  loaned,  recovery  of  in 
specie,  422. 

Children,  childhood  generally,  657- 
675;  adoption,  43-44,  189,  660- 
662,  740-742,  754;  bastards, 
104,  106-107,  671-676;  same, 
legitimation  of,  107,  675-676 ; 
same,  modern  law  concerning, 
673-674,  675-676 ;  legitimate 
children,  657-671 ;  same,  (1)  pa- 
ternal power  over,  55,  63,  657- 
664,  685 ;  assimilated  to  guardian- 
ship in  modern  law,  659 ;  based 
on  legitimacy  of  offspring,  659- 
660,  671 ;  determination  of,  662- 
664;  (2)  exposiu-e  of  children, 
43,  657,  659;  (3)  sale  of  children 
into  slavery,  657-658;  (4)  pa- 
rental     power     over,      664-665 ; 

(5)  maintenance    of,    658,    696 ; 

(6)  emancipation    of,    662-664 ; 

(7)  property  rights  of,  under 
medieval  law,  140,  641-642,  650, 
653,  064,  665-667,  668-671,  695, 
709-710,  753,  763-764;  same, 
under  modern  law,  387,  667- 
668,  670-671 ;  statutory  general 
hypothec  in  parents'  property, 
387 

Chrcncruda,  289. 

Codification  of  German  law,  23-26. 

Collective  hand  ("gesamte  Hand"), 
alienations  by,  640  ;  communities 
of  ("Gemeinderschaften"),  139- 
146,  150-151,  234,  235-236,  259, 
288,  305,  307,  425,  587-588,  640. 
694,  695,  709-711;  feoffment  in, 
340,  759  ;  interests  in,  charact(T- 
ized  by  benefit  of  survivorsliip, 
142,  235,  645 ;  same,  in  com- 
mercial law,  145;  obligations  in, 
543 ;       originated    in    housc^hohl 


community,  140;  ownership  in, 
145,  235-236,  239,  709-711 ;  ten- 
ures in,  144,  340,  640,  653. 

Commercial  law,  31,  461,  462,  487, 
509,  546;  collective  hand,  prin- 
ciple of,  in  commercial  law,  145 ; 
detention  rights  in,  456-457  ;  in- 
formality in  modern  contract 
law,  448,  509 ;  pledge  rights  of 
commercial  agents,  449 ;  stolen 
goods,  pursuit  of,  how  affected 
by  commercial  interests,  416; 
town  law  and,  143,  462,  and  see 
Towns. 

Commercial  paper,  generally,  565- 
576 ;  conception  and  classes, 
565-568;  history  of,  568-573; 
Germanic  elements  in  present 
law  of,  573-576;  "legitimizing" 
quaUty  of,  394,  574-576;  nude 
obligational  promises  in,  517,  567 ; 
obhgation  of,  theories  as  to  its 
source,  573-574 ;  recovery  of, 
from  third  persons,  421,  424,  451. 
Corporate  paper,  566. 
Paper  associated  with  land, 
566;  modern  German  "Grund- 
schuld"  and  Swiss  "Giilt",  374, 
394,  517;  old  rent-deeds  ("Gult- 
brief",  "Rentenbrief "),  367,  372, 
394,  566. 

Paper  associated  with  chattels, 
212,  437,  448,  567. 

Paper  embodying  negotiable 
contract  claims,  567-576;  history 
of,  568-572 ;  attorney  clauses, 
570;  bearer  paper,  421,  568,  570; 
same,  in  present  law,  573 ;  bills 
of  e.xchange,  421,  488,  567:  ca- 
pacity to  make  negotiable  paper, 
60 ;  constitutive  paper,  567,  568 ; 
indorsement,  571 ;  literal  paper, 
567 ;  nominal  paper,  568  ;  order 
paper,  421,  568-57 1 ;  same, 
modern  forms  of,  573;  "Skrip- 
tur"  obligations,  567. 

Common  lands,  generally,  118,  126, 
253;  disappearance  of,  121-122; 
discommon  statutes,  125 ;  regality 
of  commonty,  124.  See  Mark 
Associations;  Ownership. 

Common  law.  See  German  Law; 
Reception. 

Common  rights  in  land,  (1)  rights 
of  common,  118-119,  124  (herit- 
ability),  281,  286,  350,  354-355, 
35();  (2)  of  hunting,  276.  See 
Communities;  Manor, 

Communes,  122,  124. 

Communities,  co-heir,  142-144,  145, 
236,  308,  709-711;  of  collective 
hand,  139-146,  150-151,  234, 
235-236,  259,  288,  305,  307,  308, 


769 


INDEX 


425,  587-588,  640,  094,  005,  TOO- 
TH; farm  eomniuiiities,  125- 
120;  pasture  communities,  354- 
355;  peasant  communities,  141- 
142,  145,230,  710;  usufructuary 
communities,  124.  For  com- 
munity ownership  see  Children; 
Marital  Property;  Owner- 
ship. 

Component  parts.     See  Things. 

Concubinage,  580,  OTl,  GT2. 

Conti'acts,  historical  origins  of  con- 
tract hiw,  4T2  ;  medieval  contract 
law,  why  scanty  as  compared  with 
law  of  things,  4()0,  540;  same, 
land-lordship  replaced  contract 
in  medieval  law,  401 ;  types  of 
contract,  544-.540 ;  formal  ol)li- 
gations  of  (rermanic  law,  400- 
503 ;  informality  in  contracts  of 
modern  law,  508-510 ;  writing, 
requirement  of,  in  modern  law, 
510-512;  real  contracts,  400, 
502,  503-50T,  500,  51T;  betrothal 
as  a  real  contract,  507-000,  601 ; 
earnest-contracts,  505-507,  513, 
564,  580 ;  same,  a  compound  of 
real  and  formal  contract,  506- 
507  ;  same,  in  marriage  law,  508  ; 
obligational  contracts  ("Schuld- 
yertrage"),  490-513;  offer,  bind- 
ing force  of,  514 ;  public  offer 
("Auslobung"),  514  ;  obligational 
promises,  "abstract"  (nude)  and 
"specific",  distinguished,  252, 
567;  same,  nude,  515-518,  567; 
same,  unilateral,  513-515,  574 ; 
third  persons,  contracts  for  lienefit 
of,  518-521 ;  illegal  contracts, 
gaming,  563-565 ;  labor,  con- 
tracts for,  554—557 ;  service, 
contracts  for,  512,  557-550;  mar- 
riage contract,  633-634. 

Fault  and  accident  in  contract 
law,  527-5.33,  and  sec  Obluja- 
TiONs;  default,  hquidated  dam- 
ages, penal  damages,  and  smart- 
money  for,  .503,  513,  .521-.527. 

Assignment  of  contract  claims, 
47,  .524,  533-536,  and  see  Obli- 
gations. 

Rescission  of  contracts,  513, 
525,  52(>-.527,  .540. 

See  Commercial  paper;  Dam- 
ages; Documents. 

Conversion,  4()0,  and  see  Chattels 
(recovery  of). 

Corporation,  Germanic  corporate 
association  ("  Korper.schaft"),  20, 
122-124,  133,  1.35,  1.3(),  138,  1.39, 
14f;,  147-1.50,  151,  1.56-1.59,  288; 
Roman  "universitas"  ("  Korpora- 
tion"),  151-156,  1.57;    same,  con- 


cession policy  to-day,  159 ;  de- 
lictual capaci'ty  of,  148,  153,  158 ; 
property  capacity  of,  148 ;  statu- 
tory rights  of  escheat  and  succes- 
sion, 738-739.  See  Associa- 
tions; Endowment;  Founda- 
tion. 

Co^urts,  folkmoots,  15,  16,  202,  638, 
741 ;  medieval  city  over-courts,  19. 

Crafts.     Sec  Gilds. 

Credit,  barter  economy,  459,  503, 
545,  59() ;  capital,  growth  of,  1()5, 
358,  370,  401  ;  credit  transactions, 
sales  of  early  law  not,  59() ;  money 
loans,  373,"  502,  559-5(53.  See 
Debtor  and  Creditor;    Towns. 

Criminal  law,  feudal  felonies,  341 ; 
homicide,  578-570 ;  Jews'  privi- 
leges under,  418^19;  obligations 
under  the,  522. 

Curatorship,  distinguished  from 
guardianship,  684;  "cura  ano- 
mala"  (of  missing  persons),  51, 
72,  683;  "cura  prodigi",  72-73, 
683;  "cura  sexus",  69;  "curator 
hereditatis  iacentis",  684.  See 
Guardianship. 

Customary  law,  in  general,  5-T, 
26,  29-32,  149. 

Damages,  for  breaches  of  contracts, 
547,  549,  550,  555,  556 ;  contrac- 
tual penalties  and  liquidated  dam- 
ages, 503,  513,  .521-527;  damages 
for  torts,  in  general,  5TT-579 ;  for 
torts  due  to  accident,  involuntary 
acts,  animals,  third  persons,  and 
things,  see  Obligations;  for 
torts,  punitive  damages,  579 ;  for 
seduction,  601 ;  for  conversion, 
460 ;    for  homicide,  578-579. 

Death,  only  one  mode  of  ending 
civil  rights,  47 ;  civil,  47-48 ; 
claustral,  48 ;  natural,  40-47  ; 
common,  .529  ;  presumptive*,  49- 
54  ;  proof  of,  40 ;  registration  of, 
46. 

Debtor  and  Creditor,  assignment  of 
credits  and  debts,  see  Contracts; 
Oblkjations  ;  bondage  of  debtor, 
481  ;  iinprisoiHiu'nt  for  debt,  481, 
488;  documentary  ])r()niises,  con- 
stitution of  formal  obligations  by 
(l('li\('ry  of,  in  medieval  and 
modern  law,  502,  517;  execution 
sales,  250;  "fetch "-debts  and 
"  bring  "-debts,  523-525,  527 ; 
hypothec,  its  original  accessory 
nal  ure,  391 ;  loans  of  things, 
522-523 ;  same,  of  money  at 
interest,  373,  .5.59-563;  same, 
regulation  of,  371-372,  550-563; 
same,  usurious,  86,  561 ;    interest 


770 


INDEX 


after  default,  525-526 ;  plurality 
of  creditors,  537-540 ;  forms  of 
co-credits,  (1)  severable,  538, 
(2)  inseverable,  538-540  ("in 
solidum",  538;  for  undivided 
shares,  539 ;  in  collective  hand, 
539-540) ;  plurality  of  debtors, 
540-543 ;  forms  of  co-obhgations, 
(1)  severable,  540,  (2)  inseverable, 
540-543  (collective,  541-543;  in 
collective  hand,  543).  See  Exe- 
cution. 

Deeds.  See  Documents  ;  Title 
(alienation). 

Defectives.     See  Guardianship. 

Dikes,  law,  127,  287-290. 

Dipsomaniacs,  73,  683. 

Distraint,  judicial,  442,  450,  456, 
478;  private,  441-443,  450,  477, 
478,  479,  484;  natm-e  of  right 
acquired  by,  363,  384,  450 ;  pri- 
vate distraint  against  either  land 
or  chattels,  363,  384. 

Divorce,  612-617 ;  ecclesiastical 
(Canon  and  Protestant)  law  of, 
612,  614-615,  616;  Germanic 
law  of,  613-614 ;  modern  tem- 
poral law  of,  615-617  ;  adultery, 
in  law  of  mundium  and  divorce, 
616-617 ;  separation  from  bed 
and  board,  615-616,  617;  sterility 
a  ground  for,  613-614. 

Documents,  dehvery  of,  creating  a 
formal  contract,  502,  569 :  de- 
livery of,  in  alienating  things  or 
interests  therein,  244-245,  437, 
448,  502,  569,  574,  745,  754; 
medieval  private  business  docu- 
ments, 568.  See  Commercial 
Paper. 

Dower,  betrothal  and,  598,  601; 
dotal  system  in  marital  commu- 
nity of  goods,  627,  628,  629,  645, 
646,  647,  648,  651,  654-655; 
"Leibzucht"  and,  627,  628,  637, 
641,  651 ;  morgive  distinguished, 
626,  629,  645 ;  the  two  combined, 
646 ;  dower  originally  purchase 
price  of  wife,  595,  596,  597,  601, 
623 ;  part  of  wife's  and  widow's 
estate,  624-625,  627,  628;  wife's 
hypothec  in  husband's  property 
to  secure  dower,  385,  387,  639, 
650 ;  belonged  to  widower  in 
childless  marriages,  629.  See 
Widow. 

Do^vry,  624,  625,  636,  646;  para- 
phernalia distinguished,  635 ; 
when  it  belonged  to  widower, 
629,  646. 


Earnest  money.     See  Contracts. 
Easements.     See  Servitudes. 


"Einkdndsehaft."     See  Succession. 

Emigration,  tax  on,  77. 

Eminent  domain,  256-259,  and  see 
Escheat. 

Enacted  law,  private  and  public 
distinguished,  7-8 ;  private,  29, 
97-99,  308,  310;  pubhc,  26, 
29-32,  and  -passim  for  specific 
legislation. 

Enclosures,  125. 

Endowment  ("Stiftung"),  153,  155, 
158,  159. 

EngUsh  law,  17,  19,  48,  111,  129, 
165,  168,  214,  376,  698. 

Entails,  308-316,  761-762,  and  see 
Succession;    Title  (alienation). 

Escheat,  (1)  escheat  proper,  for  lack 
of  heirs,  341,  346,  737,  741; 
reasons  for,  696;  feudal,  341, 
738;  to  mark-association,  119; 
neighbors'  herital  rights,  737- 
738 ;  statutorj^  to  corporate  as- 
sociations and  foundations,  738- 
739;  to  state,  76,  739;  (2)  for- 
feiture to  state,  76,  201. 

Espousals.     See  Betrothal. 

Estates,  social,  see  Status  ;  interests 
in  property,  see  Chattels  ;  Land  ; 
Ownership,  and  cross-references 
there  given. 

Execution,  judicial  custody  after, 
381;  "missio  in  bannum  regis", 
52,  201,  247,  380;  sales,  256, 
393. 

Executor,  testamentary,  754-757. 

Expectancy,  rights  in.  Sec  Future 
Interests. 

Faith,  pledge  of  ("fides  facta"), 
493-497,  500,  522. 

Family,  Germanic  greater,  114,  587- 
588 ;  lesser,  587-588 ;  matriarchal 
system,  589-590,  722  ;  same,  Ger- 
manic "Avunkulat",  590,  722; 
same,  mother-law  not  synony- 
mous, 589;  patriarchal  svstem, 
115,  116,  584-587,  588-589,  591- 
617 ;  same,  and  marriage,  588, 
589  ;  same,  and  law  of  succession, 
694-695. 

Family  or  household  property, 
305,  695;  family  entails,  308- 
316,  (succession  to)  761-766; 
trust-entails  ("  fideieommissa  " ) , 
310-316,  (succession  to)  761- 
762. 

Family  council,  682.  See 
Guardianship:  Mundium. 

Fault,  legal,  527-533,  and  see 
Obligations. 

Feoffment.     See  Feudal. 

Feudal,  system,  generally.  90,  319, 
334-335 ;    same,  dc.'ay  and  statu- 


771 


INDEX 


torv  modifioations  of,  347-340 ; 
feudal  law,  uu'dicval,  4,  92,  189, 
334-341  ;    modirii.  341-349. 

Fief,  322.  334-337,  339  ;  family 
fief,  71)1  ;  "feuda  extra  curtem", 
347;  "feudum  ex  pacto  et  provi- 
dentia  maioriim",  34(5,  701; 
"feudum  hereditarium",  341, 
761;  "feudum  novum",  345, 
759;  "feudum  oblatiim",  338; 
"feudum  paternum",  345,  759; 
rights    as    lief,    337;       sub-feud, 

339,  341,  348;  succession  to 
fief,  339-340,  345-34(5,  758-7G1. 

Feoffment,  1(33,  185,  190,  241- 
246,    337-340;       collective,    144, 

340,  341,  343,  759;  contractual, 
338-339,  341 ;  nuptial  giving 
corresponded  to,  (500,  602 ;  of 
reversions  and  expectancies,  338, 
342-343;  "per  cartam",  244- 
245,  502 ;  real  rights  conferred 
by,  339. 

Capacity,  337  ;  chattels,  feudal 
tenure  of,  342,  and  sec  vSeisin  ; 
debts,  344-345;  dues,  321,  326, 
328,336,369,743;  escheat,  341, 
737  ;  estate  of  knightage,  90,  92 ; 
expectancies,  338,  342-343  ;  felo- 
nies, 341;  partition,  346;  pre- 
scription, 343-344 ;  reliefs,  326, 
657;  reversions,  338,  342-343; 
seisin,  339  ;  vassaldom,  personal 
and  tenurial  elements,  186,  336; 
vassal  tenures  abolished,  347 ; 
wardship,  341,  346. 

"Fideicommissa",  trust-entails. 

See  Succession;    Title. 

"Fides  facta",  pledge  of  faith. 
See  Obligations. 

Finding,  law  of,  428^33. 

Fisheries,  law  of,  127,  286-287; 
fishery  associations,  127. 

Fixtures,  173,  175,  176-177,  267, 
433-434,  and  see  Things. 

Folk-moots.     See  Coxtrts. 

Forest  law,  12(5-127,  271-274. 

Forestalling,  54(5-547. 

Formalism,  symliolism,  and  general 
sensuous  characteristics  of  the 
primitive  and  medieval  law,  9-15, 
28,  184,  4(51,  490-492,  531,  541. 
See  Obligations;    Pxtblicity. 

Foundation  ("Anstalt"),  122,  153, 
154,  155,  159,  321,  738;  dis- 
tinguished from  corporate  associa- 
tion, 155. 

Future  interests,  in  chattels,  40.5; 
in  land,  (1)  rights  in  expectancy, 
304-306,  307,  338,  342-343,  345, 
395,  742 ;  (2)  reversionary  in- 
terests, 338,  342-343,  344,"  347, 
628,699,729;    (3)  as  real  rights, 


395-396 ;   (4)  estates  in  abeyance, 
704. 

"Gaiukthinx"  of  Lombard  law. 
See  Adoption. 

German  and  Germanic  law,  general 
traits,  1-39;  associational  char- 
acteristics of,  110;  codification 
of,  23-26,  32;  commercial,  31, 
4(<1,  462,  487,  509,  r>46;  pandect 
common  law,  general  character- 
istics of,  20-21,  22,  27,  32,  33-36, 
and  passim  for  effects  of  the 
Reception  ;  customary'  law,  gener- 
ally, 5-7,  26,  29-32:  formalism 
and  sensuous  characteristics  of 
early,  9-15,  28,  184,  461,  490- 
492,  531,  541,  and  see  Publicity; 
judicial  law,  part  of  "Juristen- 
recht",  31,  311,  747;  legal  unity, 
disunity  characteristic  of  German 
law,  2,  3,  25;  growth  of  legal 
unity,  22-26,  32,  38,  189:  medie- 
val law,  characteristics  of,  8-16; 
personality,  principle  of,  2,  13, 
75;  present  law,  in  general,  32- 
33,  38-39;  same,  Germanic 
characteristics  in,  27,  487-489, 
573-576,  and  see  Publicity  (also, 
passhn,  the  discussion  of  individ- 
ual legal  institutes) ;  i)ositive 
character  of,  36-38;  procedure 
in  early  law,  13;  public  and 
private  law,  see  Public  Law; 
racial,  2,  25,  26-27;  Reception, 
general  features  and  results  of 
the,  1(5-32 ;  religion,  influence  of 
upon  law,  79-87;  statutory  law, 
sec  Enacted  Law;  territorial 
principle,  3.  See  Feudal; 
I^Ianor;  Noble  Estate;  Servi- 
TAUY  Law;    Town  Law. 

Gifts,  donation,  54;>-546;  strict 
donation  originally  impossible, 
the  Lombard  "launegild",  546; 
inter  ^^vos,  74(5;  mortis  causa, 
742-746,  754-755;  adojition  and 
gifts  mortis  causa,  740-742  ;  gifts 
post  obitum,  519,  744;  posses- 
sion, necessity  of  chang(>  of,  426, 
745;  gift  of  land,  with  charge 
reserved,  504,  545 ;  same,  with 
usufruct  reserved,  191,  741,  744. 
See  Tradition. 

Gilds,  128-135;  coercive  principle, 
130-131;  legal  nature,  133,  149; 
craft  companies.  129,  149;  craft 
fraternities.  129-130;  gilds  mer- 
chant. 128-129;  modern  trade 
unions,   135. 

Good  faith,  possession  acquired  in, 
421^24;  ownership,  451 ;  pledge, 
448,  449,  451. 


72 


INDEX 


Guardianship,  677-693;  older  law 
of,  677-681 ;  modern  law  of, 
681-683,  691-693;  Canon  law 
and,  591. 

Nature  of  power,  its  history, 
677-683 ;  curatorship  distin- 
guished, 684 ;  guardianship  orig- 
inally a  household  power  based 
on  mundium,  677,  680 ;  its  later 
development  due  to  loss  of  char- 
acteristics of  mundium,  679 ; 
feudal  wardship  originated  in 
escheat,  341 ;  legal  position  of 
guardian,  690-693 ;  paternal 
power  assimilated  to,  in  modern 
law,  659 ;  refusal  of  guardian- 
ship, 689 ;  termination  of  same, 
693 ;  removal  of  unfaithful 
guardian,  686 ;  ward's  hypothec 
in  guardian's  property,  387. 

Persons  subject  to  guardian- 
ship, defectives,  71-72,  683  ;  dip- 
somaniacs, 73,  683  ;  feudal  wards, 
341,346;  missing  persons,  51,  72, 
683;  prodigals,  72-73,  683; 
women,  unmarried,  63,  65,  67- 
69,  633-634,  635,  644,  677,  683; 
fatherless  minors,  683,  684-693. 

Capacity  to  act  as  guardian, 
60;  dependent  on  equal  birth, 
92  ;  sib  as  guardian,  65,  677-679 ; 
685;  _  "chosen"  guardian,  680; 
guardian  of  minors,  appointment 
of,  685-687  ;  same,  qualifications, 
6SS-()80  ;  same,  supervisory,  678, 
6n7-(  iss  ;  same,  several  guardians, 
687-G88. 

See  Children  ;    Curatorship. 

"Hand  wahre  Hand."  See 
Chattels. 

Hansa,  137,  138. 

Health,  physical  and  mental,  69-72. 

Heir,  and  decedent's  obligations, 
705-708  ;  who  is  heir,  see  Succes- 
sion. 

Hire  and  lease.     See  Leaseholds. 

Honor,  civil,  47,  102-108;  dis- 
honorable trades,  104-105 ;  in- 
famy, 105-108,  672,  673. 

Hotchpot,  710,  711. 

Hue  and  cry.     See  Chattels. 

Hunting,  law  of,  274-278,  426. 

Hypothec.     See  Pledge. 

Immovable  things.     See  Things. 
Improvements    of   land,    servitudes 

in  restraint  of,  205-268. 
Incorporeal  things.     See  Things. 
Infamy.     See  Honor. 
Infancy.     See  Minority. 
Informality,  in  contracts  of  modern 

law,  508-513 ;     in  legal  transac- 

77 


tions  after  Reception,  28.  See 
Formalism. 

Inheritance.     See  Succession. 

Involuntary  acts.  See  Obliga- 
tions. 

Jews,  liistory  of  legal  status  of, 
83-87 ;  outside  of  feudal  system, 
337 ;  privileges  as  bankers  and 
traders,  85 ;  privileges  as  re- 
ceivers of  stolen  goods,  418-419; 
privileges  as  usurers,  86,  561. 

Junior  right.     See  Succession. 

Juristic  persons.  S«e  Corpora- 
tions. ^ 

Kindred,  Canonio"  reckoning  of  kin- 
ship, 719.  _ 

Germanic  system  and  degrees 
of  kinship,  712-722;  parentelie 
system,  716-720 ;  reckoning  by 
joints  of  skeleton,  717-719;  re- 
lationship by  stocks,  720-721 ; 
relationship  by  cousin-groups, 
721-722;  agnates,  114,  760; 
cognates,  115;  blood  friends, 
714-716,  720;  same,  paternal, 
715,  724;  same,  spear  friends, 
678,  715,  749 ;  same,  distaff  or 
spindle  friends,  678,  715,  749; 
half-blood,  645,  734. 

Rights  of  Idndred  in  restraint 
of  alienations,  304-316,  395-397; 
same,  rights  in  expectancy,  304— 
306,  (heir's)  395-397;  same, 
rights  of  co-alienation,  306-308 ; 
same,  rights  under  family-entails, 
308-310;  same,  rights  under 
trust-entails,  310-316. 

Knightage,  as  social  estate,  90,  92 ; 
associations  mthin,  139,  142-144, 
146,  147-150,  155,  288,  308,  709. 

Labor,  contracts  for,  generally, 
554-557  ;  medieval,  554  ;  Roman 
and  modern  civil  law  of,  con- 
trasted, 556  ;  in  job  work,  554  ; 
in  mining,  295;  "locatio  con- 
ductio  operis",  556;  distin- 
guished from  contracts  for  serv- 
ices, 557,  and  see  Services. 

Land,  interests  in.  See  Allod  ; 
Family  ;  Feudal  (fief) ;  Future 
Interests;  Leaseholds;  Own- 
ership ;  Possession  ;  Registr.\- 
tion;  Tenure;  Title. 

Land,  law  of,  generally,  164-403 ; 
characteristics  of  medieval,  21, 
28,  164-165,  168,  189,  191,  227- 
228,  319. 

Land  charges,  generally,  356-367 ; 
nature  of.  356,  359-365 ;  ser^^- 
tudes  and,  350-351,  359;  mort- 
gage distinguished,  363-364,  373 ; 

3 


INDEX 


other  lands  and  chattels  on  land 
made  liable  for  uusatislied  pay- 
ments, 3(33,  373,  384 ;  history  of, 
357-359;  registration  of,  in  older 
law,  221,  307  ;  modern,  374,  3<)3- 
394,  7t)5 ;  conversion  of,  3(5(5 ; 
creation  of,  305-36(5;  extinction 
of,  300-307 ;  laud  subject  to 
unrestricted  charging,  200. 

Specific  forms  of  land  charges, 

(1)  manorial  dues,  325,  357,  3(38; 

(2)  tithes,  3(59-370;  (3)  ground- 
rents  ("Zinsen")  of  old  law, 
(rural)  308-309,  (urban)  333; 
(4)  "Erbegelder",  709;  (5)  pur- 
chase-rent ("Rentenkauf  ")  of  old 
law,  334,  358,  371,  384,  391,  393, 
561,  502;  (0)  capital-rents 
("Renten"),  370-374;  redemp- 
tion of,  372-373 ;  as  real  rights, 
461 ;  (7)  modern  limited  an- 
nuitv-charge  ("  Rentcnschuld  "), 
372,'  373,  374,  393,  394,  5(50; 
modern  limited  land-d(0)t 
("Grundsohuld"),  374,  393,  394, 
407,  500. 

Landed  property,  history  of.  See 
Ownership  (community). 

Larceny  or  robbery.     See  Chattels. 

Leaseholds,  medieval  contracts  for, 
460;  distinction  between  "Miete" 
and  "Pacht",  552;  bare  leases, 
or  hire  ("Miete"),  387,  552; 
usufructuary  lease  ("Pacht"), 
186,  552 ;  nature  of  rights  under 
leaseholds,  l(i2,  187,  229,  320, 
325,  320,  327,  334,  552-553;  sale, 
whether  it  breaks  lease,  552 ;  ob- 
ligation to  release,  327,  331,  339; 
possession  under,  207 ;  entry  not 
essential  to  obligational  relation 
in  modern  law,  509 ;  bare  and 
usufructuary  lessor's  statutory 
general  hypothec  in  hirer's  and 
lessee's  farming-stock,  and  in 
produce  of  land,  387,  449,  450; 
leases  at  \vill,  320-322,  323 ;  pre- 
carious tenancies,  320-322 ;  same, 
old  "precariae",  321,  324,  745; 
leases  for  vears,  320,  324-32(5, 
329;  for  Hfe,  324;  heritable 
leases,  324-320,  327,  328,  329, 
330,  331,  .332;  urban  leases.  332- 
334  :  building  leases,  334  ;  co- 
lonial leases  of  eastern  (Jermanv, 
325,  320,  765. 

Legal  action,  capacity  for,  42 ; 
women's  capacity  for,  (54.  (59,  (520. 

Legal  duty  ("Schuld"),  concept  of, 
generally,  391,  4(5.5^(58;  common 
law  theory  of,  485-487  ;  in  present 
law,  487-489.     See  OBLUiATioNs. 

Legitimacy.     See  Children. 


Liability  ("ITaftung"),  nature  of, 
303,  375,  4(58-473 ;  legal  duty 
distinguished  from  liabilitv,  13, 
391,  403-4(55,  408-409,  471',  485- 
486,  487-189,  491. 

Varieties  of  liability,  in  pres- 
ent   law,    487-489;     historically, 

(1)  i)ersonal  lial)ilitv,  473-4  74, 
475-485,  494,  500;  this  including 
(a)  corporal  lial)ilitv  of  debtor, 
470-479,  and  of  surety,  480-483 ; 
{b)  propertv  liabilitv  of  debtor, 
474,  478,  48(5,  and  of  surety,  479, 
483-485 ;  this  last  distinct  from 
real  liabilitv,  473-474,  478,  488; 

(2)  real  liabilitv,  302-365,  384, 
391,  393,  443,  467,  469,  473^75, 
479,  488;  same,  concept  of,  470- 
471,  473,  475,  479;  in  chattel 
pledges,  443,  454 ;  same,  in  old 
law  a  real  liability  could  not  be 
created  by  a  pledge  right  alone, 
479;  in  gage  of  land,  378,  379, 
382,  383,  384,  380  (modern),  391, 
489;  in  land  charges,  303-364, 
372,  373,  384,  393,  489. 

See  Ohligations. 

Liens,  acquired  by  distraint,  450; 
by  merchants'  rights  of  deten- 
tion, 450,  456. 

Life,  presumption  of,  50,  53. 

Limitation  of  actions,  14-15,  and 
see  Prescrii'tion. 

Loans,  of  money,  373,  502,  559- 
563 ;  of  things,  422 ;  same,  de- 
livery not  essential  to  the  creation 
of  the  obligation  in  modern  law, 
509. 

Maintenance,  rights  to,  345,  621, 
658,  (596,  737. 

"Majorat."     See  Succession. 

Majority.     See  Minority. 

Manor, '121,  323-324,  325;  dues 
and  services,  325,  357,  368  ;  lands 
of,  (599;  law  of,  4,  121,  189,  323; 
tenures,  323-324  ;  three-field  agri- 
culture, 119,  126,  236,  2(53. 

Marital  property,  generally,  621- 
62();  bases  of  wife's  subordinate 
position,  (5224523;  Canon  law 
and,  591  ;  extraordinary  diversity 
of  (Jermanic  systems  of,  022,  646, 
655. 

Folk4aw  period,  621-629;  es- 
sential character,  629;  historical 
origins,  ()21-()24;  systems  during 
marriage,  02(5-(528;  after  dissolu- 
tion of  marriage.  028-(529  ;  power 
of  husband  over  wife's  property, 
even  when  in  theory  her  own, 
(527  ;  acquests,  (527  ;  wife's  estate, 
elements  of,  623,  624-626. 


774 


INDEX 


Medieval  period,  629-646 ; 
common  principles,  629-634 ;  im- 
portance of  husband's  mundium, 
632-633,  635-636 ;  wife's  limited 
power  to  bind  husband  for  debts, 
633 ;  number  of  systems  infinite, 
631 ;  the  administrative  commu- 
nity, 634-638 ;  the  community  of 
goods,  639-646;  these  two  dis- 
tinguished, 629-632 ;  contractual 
modifications  of  typical  systems, 
633-634,637-638,^645-646;  chil- 
dren, effect  of  their  birth  upon 
marriage  settlement,  634. 

Modern  period,  646-655 ;  gen- 
eral development,  145,  646-649 ; 
the  administrative  community, 
649-651,  668-669;  the  general 
community  of  goods,  651-653; 
the  limited  (acquest  or  chattel) 
communities,  646,  647,  653-654 ; 
the  dotal  system,  646,  647,  651, 
654-655. 

Present  law,  uniformity  of, 
655-656. 

See        Acquests;  Dower; 

Dowry;    Morgive  ;    Mundium; 
Women. 
Maritime  law,  pledges  of,  449,  452- 

454. 
Mark-associations,  116-125,  149, 
291,  350;  disintegration  of, 
causes,  121,  124;  originally  free 
but  became  unfree,  121 ;  origi- 
nallj'  non-corporate  but  became 
corporate,  120,  149 ;  three-field 
agriculture  of,  119,  126,  236,  263  ; 
village  communities  distinguished 
from,  117-118,  121,  123;  "Gau"- 
mark  and  hundred-mark,  117. 
See  Common  Lands  ;  Manor. 
Marriage,  generally,  588-656 ;  per- 
sonal relations  of  spouses,  617- 
621  ;  property  relations,  621-656 ; 
Germanic  law,  marriage  a  secular 
act  under,  603 ;  nuptials,  600- 
603 ;  same,  distinguislied  from 
betrothals,  596-597,  601-602,  605  ; 
temporal  law  of,  modern,  609- 
610 ;  marriage  not  the  only  sexual 
,  union  recognized  by  old  law,  591- 
S92;  concubinage,  589,  671,^672; 
~t3hureh's  benediction  of  Germanic 
secular  marriage,  603-()04  ;  clan- 
destine marriages,  introduction  of 
Church's  bans  and  witnesses  to 
prevent,  606;  ecclesiastical  law 
of  marriage,  591,  604-609,  612, 
(Canon  law,  nQOI,  604-007,  612; 
Protestant  law,  607-()091. 

Adultery,  killing  or  divorce*  of 
wife  for,  616-617;  brideflight, 
594,  597;     capacity  for  marriage. 


60;  cohabitation,  597,  601,  606, 
619,  626 ;  consummation  of  mar- 
riage by  "copula  carnalis",  606; 
contracting  of  marriage,  special 
forms  necessary  to,  591-593 ; 
marriage  contracts,  033-634  ;  chil- 
dren, effect  of  their  birth  upon 
marriage  settlement,  634 ;  dis- 
solution of  marriage  l)y  death, 
611-612;  dissolution  during  life, 
see  Divorce  ;  endogamous  and 
exogamous  marriage,  713;  hus- 
band's mundium, <595,  597,  601, 
617,  622,  632-633,  635,  644,  670 
Germanic  customs  surviving  in 
present  marriage  symbolism  and 
terminology,  593,  595,  597,  598, 
600 ;  investiture  in  marriage, 
nuptial  giving,  600-602:  monog- 
amous marriage,  ^588.  615  ;  mor- 
ganatic marriage,  Q9i_626j  "nu- 
dus  consensus  facit  nuptias", 
605 ;  paternal  mundium  ter- 
minated by,  59,  617,  664,  693; 
patriarchal  family,  marriage  in, 
^5S§T-^89:;  purchase-marriage, 
594-595  ;  sib's  powers  over  mar- 
riages, 594,  597,  599,  612  ;  sterility 
of  marriage,  effect  upon  succession 
by  survi\ang  spouse,  628-629, 
650 ;  same,  ground  for  divorce, 
613-614  ;  "traditio  puellae",  600 : 
unequal  marriages,  93,  99-102, 
626;    wife-abduction,  593-594. 

See     Betrothal;       Divorce; 
Marital  Property  ;    Mundium. 

Matriarchy.     See  Family. 

Maxims,  in  old  Germanic  law,  10 ; 
"Batards  n'ont  point  de  ligne", 
673;  "Cuius  regio  eius  religio", 
80;  "Das  Gut  rinnt  wie  das 
Blut",  728;  "Das  Kind  fiillt  in 
der  ]\Iutter  Schoss",  725;  "Don- 
ner  et  retenir  ne  vaut",  426,  745 ; 
"Erbgut  geht  wieder  den  Weg 
daher  es  gekommen  ist",  729; 
"Frauengut  soil  weder  wach- 
sen  noeh  schwinden",  638; 
"  Freundesblut  wallt  und  wenn 
es  audi  nur  ein  Tropfen  ist", 
714;  "Gedinge  bricht  Land- 
recht",  634;  "Geiselmahl  kost- 
liehes  Mahl ",  382  ;  "Hand  wahre 
Hand",  407,  408-409.  415.  41()- 
417,  420,  423-424,  437-438,  439, 
447,  448,  451,  529;  "Hat  die 
Egge  das  Land  bestrichen,  so  ist 
die  Saat  erworbon  ",  435  ;  "  Heirat 
maclit  miindig",  59.  664,  693; 
"Je  niilier  dem  Blut,  je  niiher 
dem  Gut",  727;  "Kauf  bricht 
(nicht)  Miete",  552;  "Keiu 
Deich  ohne  Land,  kein  Land  ohne 


775 


INDEX 


Deich"',  280;  "KindorRut  soil 
weder  wachsen  noch  schwiuden", 
60(5;  "Langst  Leib,  liingst  CJut", 
645;  "La  recherche  de  la  pa- 
ternite  est  interdite",  674;  "Le 
mort  saisit  le  vif",  190,  701; 
"  Le  pire  einport  le  bon",  93, 
728;  "  Le  royaume  de  PYance  ne 
toinbe  pas  en  quenouille",  715; 
"  Les  propres  ne  remontent  pas", 
728;  "Le  ventre  affranchit",  93; 
"Man  glaubt  den  Augen  welter 
als  den  Ohren",  492;  "Miete 
geht  vor  Eigen",  552;  "Miindel- 
gut  soil  weder  wachsen  noch 
schwinden",  690,  092;  "Nemini 
res  sua  servit",  355;  "Nemo 
plus  iuris  transferre  potest  quara 
ipse  habet",  439;  "Nemo  pro 
parte  testatus  pro  parte  intestatus 
decedere  potest",  753;  "Neque 
genus  neque  gentem  habent  bas- 
tard!", 672;  "Nudus  consensus 
facit  nuptias",  005;  "NuUe 
terre  sans  seigneur",  335;  "Nul 
n'est  batard  de  sa  mere",  673; 
"Ohne  Faust  kein  Pfand",  440; 
"Paterna  paternis,  materna  ma- 
ternis",  729;  "Partus  sequitur 
ventrem",  93;  "Ritters  Weib 
hat  Ritters  Recht",  94;  "Sehen 
geht  iiher  horen",  492;  "Servitus 
in  facieudo  consistere  nequit", 
350;  "Simple  transport  ne  saisit 
point ",  533  ;  "Solus  deus  heredem 
facere  potest,  non  homo",  ()9() ; 
"Soviel  Mund,  soviel  Pfund", 
728;  "Superficies  solo  cedit", 
173,  207,  433-434;  "Tous  ven- 
deres  doit  varandir",  547;  "Ubi 
rem  meam  invenio,  ibi  vindieo", 
420;  "Was  die  Fackel  verzehrt 
ist  Fahrniss",  107;  "Was  in  des 
Nachbars  Hot"  fiillt  ist  sein",  2(55; 
"Was  nicht  erwintert  wird  an 
Vieh,  soil  auch  nicht  gesommert 
werden",  354;  "Wer  den  bosen 
Tropfen  geniesst,  geniesst  auch 
den  (ruten",  2(55;  "Wer  den 
Weg  fordert  soil  ilin  mit  Garben 
belegen",  263;  "Wer  die  Augen 
nicht  auf'tut,  tut  den  Beutcl  auf", 
549;  "Wer  niirrisch  kauft,  muss 
weislich  bezahlen",  549;  "Wer 
nicht  will  deichen,  muss  weichen  ", 
289 ;  "Wer  siiht,  der  miiht",  435  ; 
"Wer  unwillig  getan,  muss  willig 
zahlen",  577;  "Wer  will  wohl 
und  selig  sterben,  der  lasse  sein 
Ciut  dcm  rechten  Erbcm",  (597; 
"Willkiir  bricht  Stadtrecht, 
Stadtrecht  bricht  Landrecht, 
Landrecht  bricht  gemein  Recht", 


23;  "Wo  du  deinen  Glauben 
gelassen  hast,  musst  du  ihn 
suchen",  409;  "Zu  Erb  und 
Eigen  legen",  039. 

Merchants'  law.  See  Commeucial 
Law. 

Mining,  associations,  127,  301-302 ; 
claims,  300;  law,  290-303; 
liberty  of,  293,  297 ;  regality  of, 
290-293 ;  share  rights  in  medie- 
val, 29(>-302. 

Minority,  youth,  54-59;  legal 
status  of  minors,  57;  "infantia" 
as  stage  between  minority  and 
majoritv,  57-58;  majoritv,  at- 
tainment of,  54-56,  58,  59,  67; 
same,  declaration  of,  55,  59 ; 
same,  paternal  power  not  ter- 
minated by,  662. 

Missing  persons,  49-54 ;  return  of, 
53;    guardianship  of,  51,  (583. 

Morgive,  63,  625-(^26,  627,  628, 
629,  637-1)38,  645,  (i51 ;  dower 
distinguished.  (526,  (V29,  (545 ;  the 
two  combined,  64(5;  morgive 
part  of  wife's  and  widow's  estate, 
63,  (52.'5-(526 ;  belonged  always  to 
widower,  629. 

Mortgage.     See  Pledge. 

Mother-right.     See  Family. 

Mundium,  husband's,  617-618,  622, 
032-633,  035,  (>44 ;  same,  pur- 
chase of,  595,  597,  001 ;  same, 
none  over  concubine  and  her 
offspring,  071 ;  paternal,  55,  63, 
(557-(5(54,  685;  same,  based  on 
legitimacy  of  offspring,  659-6()0, 
671 ;  same,  not  terminated  by 
majority,  602  ;  same,  terminated 
by  marriage  of  child,  59,  017, 
6(H,  693 ;  mundium,  the  root  of 
guardianship,  677 ;  seisin  and 
muiidiuni  analogous  institutes, 
13 ;  seisin  conferred  through, 
627,  634,  635. 

"Nantissement"  of  French  cus- 
toms, 251. 

Nature,  law  of,  41,  231. 

Necessi ty ,15,  528,^  (52 1 . 

Negligence.     .Sre  Fault. 

Negotiable  paper.  See  CoM- 
MHuriAL  Paper. 

Neighbors,  rights  of.  See  Owner- 
ship; Succp:ssion. 

Noble  estate,  89_,  92;  nobiliary 
law,  modern,  95-102. 

Nuisances,  disagreealile  and  danger- 
ous structures,  2(56;  odors  and 
vil)rations,  2(j3,  268. 

OnLir.ATioNs,  generally,  458-543 ; 
historical  origins  of,  460,  490— 
515;    torts  the  original  source  of. 


776 


INDEX 


460,  471,  472;  legal  duty 
("Schuld"),  and  liability  ("Haft- 
ung")  the  fundamental  concep- 
tions of  the  law  of,  13,  463,  469, 
471,487,489;  distinction  between 
these,  13,  391,  463^65,  468-469, 
485-486,  487^89,  491. 

Created  (1)  in  old  law  by 
formal  transactions,  11-12,  461, 
490-492,  498,  507-508 ;  same,  by 
pledge  of  faith  ("fides  facta"), 
493-497,  500,  522 ;  same,  by 
staff-formula  ("wadiatio"),  11, 
243,  375,  469,  495,  497-503,  504, 

506,  516,  517,  564,  569,  598,  741 ; 
the  two  distinguished,  705 ;  wed 
in  "wadiatio"  distinguished  from 
earnest-money,  506 ;  informality 
in  modern  law  of  obligations, 
448,  508-513 ;  formalism  re- 
maining in  suretyship,  511 ;  \vrit- 
ing,  when  required  in  modern 
law,  510-512 ;  (2)  created  as  a 
real   transaction,   490,   502,   503- 

507,  517;  (3)  imposed  under 
criminal  law,  522,  578-579 ; 
(4)  imposed  for  torts,  generally, 
60,  460,  576-582;  (5)  imposed 
upon  heir,  705-708 ;  (6)  created 
in  ordinary  obligational  contracts, 
490-508,  (for  the  analysis  of  the 
binding  elements  of  such  agree- 
ments, see  Contracts). 

Legal  fault,  cases  of  accident 
("Zufall"),  443,  444,  527,  528, 
531;  of  misfortune  ("Uixfall", 
"Ungliick"),  528,  529,  530,  532, 
582 ;  of  necessity,  15,  528,  621 ; 
acts  of  God,  529 ;  cases  of  vis 
maior,  531-532,  533;  cases  of 
involuntary  acts  ("Ungefahr"), 
527-528,  577,_  579,  582;  fault, 
contrasted  with  accident,  527- 
529,  531,  577-578;  fault  in  con- 
tract law,  527-532 ;  fault  in 
tort  law,  470,  530-531,  532,  577, 
578,  579-582 ;  same,  responsi- 
bihty  for  damage  done  bv  other 
persons,  470,  530-531,  532,  579- 
581 ;  by  animals,  581-582  ;  by 
things,  582. 

Special  types  of  obligations  ex 
contractu,  generalljs  544-546 ; 
same,  specifically,  546-576,  and 
see  Bailment;  Commercial 
Paper;  Credits;  Hire  and 
Lease;  Labor;  Loans;  Ser- 
vices;   Suretyship;   Wagering. 

Obligations  of  a  plurality  of 
obligors,  (1)  severable,  540; 
(2)  inseverable,  540-543  ;  same, 
collective,  541-543 ;  same,  in 
collective  hand,  543. 


Assignment  of  obhgations,  (by 
obhgee)  47,  524,  533-536,  (by 
obhgor)  536-537. 

Heritability  of  obligations,  705- 
706. 
Occupancy.     See     Title     (acquisi- 
tion). 
Official  estate,  89,  90,  96. 
OutlaA\Ty,   47,    103,   201,   460,   472, 
477,  478  ;   outlawTy  of  good^s,  201. 
Ownership,    concept    of,    227-232 ; 
"res   communes   omnium",    171; 
"res    extra    commercium",    169; 
"res    nullius",     170,     171,    426; 
"res  sacrae",  170,  171;    physical 
control      and,      227-228,      230; 
Roman  servitudes  and  Germanic 
"jura    in   re   aliena",    231,    349- 
350;      real  rights  and,  227-230; 
tenurial  rights  and,  319. 

Communitv  ownership,  gener- 
ally, (of  land)  253,  (of  chattels) 
425 ;  same,  by  spouses,  see 
Marital  Property  ;  same,  in 
early  Germanic  law,  by  the  mark- 
association,  119-120,  121,  123, 
and  the  sib,  115,  236,  694-695; 
types  in  medieval  law,  140,  234- 
238,  (1)  associational  collective 
ownership,  120,  123,  236-237, 
(2)  ownership  in  collective  hand, 
145,  235-236,  (3)  co-ownership 
by  shares,  238,  (4)  corporate 
collective  ownership,  237-238 ; 
types  of,  in  modern  law,  145, 
238-241,  709;  same,  ownership 
in  collective  hand,  239-240,  709 ; 
replacement  of  community  owner- 
ship bv  lord's  ownership,  121- 
122,  253-254,  280-281. 

Individual  ownership,  in  land, 
115,  118,  119,  122,  126,  227,  230, 
(historical  importance  of  occu- 
pancy) 253  ;  same,  in  chattels, 
425,  695,  697. 

Divided  ownership,  "dominium 
directum"  and  "dominium  utile", 
"over"  and  "under"  ownership, 
232-234,  344  ;  separate  ownership 
of  l)uilding  stories,  174. 

Restrictions  upon,  259-316  ;  re- 
strictions on  alienation,  304-316, 
and  see  Title  ;  Germanic  and 
Roman  concepts  contrasted  as 
respects  limitations  upon,  231 ; 
restrictions  on  user  and  enjoy- 
ment, generally,  227-230,  259- 
260 ;  same,  in  public  interest, 
260-262 ;  same,  in  interest  of 
individuals,  262  ;  same,  in  interest 
of  neighbors,  2(i2-2()8 ;  same, 
originating  in  regaUtios,  generally, 
268-271 ;       in    regalities    of    the 


777 


INDEX 


law  of  forests,  271-274;  of  huiit- 
iug,  274-278  ;  of  waters,  279-280 ; 
of  tislieries,  286-287 ;  of  dikes, 
287-290 ;  of  mining,  290-303 ;  of 
salterns,  303-304. 

See  Future  Interests  ;  Title. 

Paraphernalia,  77,  624,  627,  629, 
63.3,  636,  637,  651,  699;  dowry 
distinguished  from,  635 ;  niece's, 
637,  699 ;  inheritance,  635.  See 
Dowry. 

Parental  power.     See  Children. 

Parentolic  system.     See  Kindred. 

Partition,  feudal,  346;  right  of, 
260,  642,  764 ;  of  substance 
("Watseher"),  142,  143,  305, 
309,  642,  650,  664;  of  usufruct 
("Mutschierung"),  143,  236, 
340 ;  special  impartible  lands, 
2()0. 

Partnership,  14.5-146,  152-153,  157 ; 
the  medieval  "contractus  trinus", 
561. 

Pasture  communities,  354-455  ;  ser- 
vitudes of  pasture,  354;  agist- 
ment, 553. 

Paternal  power.     See  Children. 

Paternity,  investigation  of,  674. 

Patriarchal  sj-stem.     See  Family. 

Pawnbroking,  455. 

Peasants,  communities  of,  in  col- 
lective hand,  118,  141-142;  en- 
francliisement  of,  330;  estate  of 
burghers  and,  91 ;  evictions  of, 
327 ;  register-rolls  of  peasant 
estates,  764 ;  peasant  tenures, 
319-332. 

Personality,  physical  health,  69-71 ; 
mental  health,  71-72;  violation 
of  rights  of,  see  Damages. 

Personality  of  law,  2,  13,  75. 

Persons,  (1)  juristic,  see  Corpora- 
tions; (2)  natural,  40-108;  as 
holders  of  rights,  generall3%  41- 
42 ;  beginning  of  capacity  for 
rights,  by  birth  or  adoption,  42- 
46  ;  determination  of  such  capac- 
ity, 46-54 ;  legal  age  periods, 
54-61 ;  legal  el^fects  of  sex,  61- 
69 ;  same,  of  health,  physical 
and  mental,  69-72 ;  same,  of 
prodigality,  72-73  ;  same,  of  alien 
character,  73-79 ;  same,  of  re- 
ligion, 79-87;  law  of  personal 
status,  87-102 ;  same,  of  civil 
honor,  102-108. 

Pledge,  generallj',  the  basic  principles 
of  ( MTinanic  law  of,  374-.375  ;  same, 
different  in  cliattel  pledges  and 
lanfl  i)Iedges,  375 ;  Roman  law 
identical  for  movables  and  im- 
movables, 385 ;  same,  though  infe- 


rior displaced  Germanic  law,  385; 
personal  pledgi',  in  narrow  sense 
of  corporal  liability,  472,475-477, 
480-483 ;  same,  in  broader  sense 
covering  accessorv  property  lia- 
bihty,  475-476,  47"7-480, 483-485 ; 
use  of  accessorv  co\enant  to  create 
this  last,  383,  444,  445,  450,  489; 
use  of  personal  suretyship,  with 
outlawry  and  distraint  to  create 
same,  477-479;  true  real  obliga- 
tion could  not  be  created  in  old 
law  by  pledge  right  alone,  479; 
registration  of  pledge  rights  in 
medieval  and  mo(lern  times, 
(land)  199,  221,  387,  389,  394, 
(chattels)  446,  448,  453. 
Pledge  of  chattels,  real  nature  of 
pledgee's  rights,  363-364,  384, 
443-445,  446,  447,  450-451,  455; 
delivery  not  necessary  to  creation 
of  obligation  in  modern  law,  even 
in  case  of  proprietary^  pledge,  509 ; 
usufructuary  rights  of  i)ledgee, 
451  ;  right  of  sale,  "sale  pledgi-s", 
445,  449,  452,  455;  "forfeiture 
pledges",  445,  452;  registration 
of  pledge  rights,  446,  448,  453, 
455 ;  negotiable  pledge  rights, 
448 ;  rights  of  a  bankrupt's 
creditors,  449;  priorities  of 
pledges,  385,  451 ;  termination 
of  pledge  right,  451-452 ;  crea- 
tion by  one  not  an  owner,  448- 
449 ;  risk,  who  subject  to,  444, 
451 ;  rights,  pledge  rights  in, 
454-455. 

(1)  "Given"  or  contract  pledge, 
440-449,  (a)  with  change  of  seisin, 
"given"  pledge  proper,  the  pos- 
sessory or  ordinary  pledge 
("  Faustpfand  "),  440-445  ;  either 
a  forfeiture  or  a  sale  })ledge,  445; 
the  security  pawn,  pawn-broking, 
455  ;  possessory  pledge  of  debtor's 
or  surety's  body,  476-477 ; 
(b)  without  change  of  seisin,  the 
chattel  hyi)othec  of  modern  law, 
385,  445^49,  451 ;  same,  by 
delivery  of  (locuments  of  title, 
448;  "general"  Iiypothecs,  385, 
387,  448,  449.  451  ;"  (2)  "Taken" 
pledges,  distraint  pledges,  3(53, 
384,  441^43,  450-451,  477,  479, 
484 ;  same,  upon  the  body  of 
debtor  or  surety,  450,  480-483, 
494  ;  same,  upon  surety's  prop- 
erty, 483-485 ;  .same,  merchant's 
detention  rights,  wiietiier  involv- 
ing lien  or  pledge,  4.')0,  456-457 ; 
(3)  statutorv  i)ledge  rights,  mod- 
ern, 385,  387,  449-150,  (inn- 
keeper) 452. 


778 


INDEX 


Pledge  of  debtor's  entire  per- 
sonality, corporal  and  property, 
by  pledge  of  faith,  494 ;  cattle 
pledges,  peculiarities,  406,  448 ; 
maritime  pledges,  446,  449,  452- 
454  ;  modern  commercial  pledges, 
448,  449. 

Pledge  of  faith.     See  Obligations. 

Pledge  of  land,  (1)  the  execution 
gage,  the  medieval  hypothec,  201, 
379-385,  446;  "Fiirpfand"  on 
property  of  obhgor  of  a  land 
charge,  363,  373,  384;  (2)  the 
proprietary  gage,  conditional  con- 
veyances as,  375-377,  378 ;  (3)  the 
usufruct  gage  (interest,  posses- 
sory, perpetual  gage,  the  "altere 
Satzung"  of  old  German  and 
"engagement"  of  old  French 
law),  377-378,  382,  383,  386,  475 ; 
same,  the  forfeiture  form,  379, 
386,  393 ;  same,  and  pledge- 
lease,  378;  same,  "mortuum 
vadium",  "mortgage",  378; 
same,    the    sale   form,    379,    383, 

386,  445,  452,  475;  same,  the 
"vivum  vadium",  378. 

Hypothec,  original  accessory 
character  of,  391 ;  the  medieval 
execution  gage  or  "jiingere  Satz- 
ung", 201,  379-385,  446;  modern 
hypothecs,  346,  385-395,  451, 
566 ;      same,    general   hypothecs, 

384,  385,  387,  391 ;  same,  specially 
privileged    statutory    hypothecs, 

385,  387  ;  same,  negotiable  hypo- 
thecs, 393-395 ;  same,  registered 
security  hypothecs,  394. 

Priorities,  general  modern  prin- 
ciple of  invariable,  390-391 ; 
priorities  of  privileged  statutory 
pledges,  385,  387. 

Leading  princix^les  of  modern 
law  of  land  pledge,  389-395; 
pubhcity,    387,   389;      speciality, 

387,  389-390,  451 ;  legality,  390; 
invariable  priorities,  390-391 ; 
non-accessory  character,  391-393 ; 
judicial  execution,  393 ;  negotia- 
bility, 393-395 ;  registration  of 
pledges,  221,  387,  394. 

Poss(!ssion,  concept  of  and  elements 
in,  206-210,  213;  distinguished 
from  seisin,  204-207,  212,  213, 
(chattels)  207,  213,  419;  multiple 
possession  of  the  same  thing 
possible  in  ease  of  land,  208-209, 
but  not  in  chattels,  405,  406,  415; 
rights,  possession  of,  209-210;  of 
land,  differences  between  seisin 
and  possession  due  to  land  regis- 
tration, 207 ;  same,  seisin  dis- 
placed   by    Roman    institute    of 


possession,  206;  of  chattels,  213, 
404—407,  419 ;  seisin  and  posses- 
sion of  chattels  not  distinct  as  in 
case  of  land,  207 ;  acquisition 
and  loss  of  possession,  210-213 ; 
original  acquisition  of,  210;  de- 
rivative acquisition  of,  210-213, 
439;  same  by  inheritance,  212; 
same,  by  prescription,  212-213, 
439;  same,  by  transfer,  210-213, 
and  see  Feudal  (feoffment) ; 
Tradition  ;  acquisition  in  good 
faith,  421-^24  ;  loss  of  possession, 
the  "possession"  of  a  disseisee, 
213  ;  protection  of  land  in  medie- 
val law  broader  than  that  of 
chattels,  213,  419,  being  given 
alike  to  corporeal  and  incorporeal 
seisin,  419,  and  without  distinc- 
tion between  voluntary  and  in- 
voluntary loss  of  possession,  408  ; 
protection  under  common  law, 
changes  in  Roman  interdicts, 
(land)  213-218,  (chattels)  419- 
424.     See  Seisin. 

Precaria.     See  Tenure. 

Preemption  rights,  generally,  395- 
402 ;  conception  and  nature  of, 
395,  398-399 ;  history  of,  395- 
398 ;  preemption  rights  of  as- 
sociates, 400,  738  ;  of  co-obligor, 
397;  of  co-owner,  397,  400;  of 
feudal  lord,  co-feoffees,  and  re- 
versioners, 344,  396,  397;  of 
heir,  397,  399;  of  kindred,  395, 
397,  399,  401;  of  manorial 
lord,  401;  of  neighbors,  397, 
400,  748 ;  of  option  holder  under 
contract,  401-402 ;  of  part- 
OAvner,  401. 

Pregnancy,  65. 

Prescription,  (1)  acquisitive,  of 
chattels,  439-i40;  of  land,  201, 
212-213,  254-255,  366;  feudal 
prescription,  343-344  ;  (2)  nega- 
tive prescription,  14-15,  367. 

Presumption,  of  death,  49-54 ;  of 
legitimacy,  660 ;    of  life,  50,  53. 

Primogeniture,  307,  762. 

Procedure,  in  early  Germanic  law, 
13  ;    and  see  Formalism. 

Prodigality.     See  Guardianship. 

ProptTty,  in  dead  body,  171 ; 
"earned",  435;  in  movables 
and  immovables,  164-169;  in 
land  and  chattels,  164-165.  See 
Allod  ;  Chattels;  Family; 
Feudal  (fief) ;  Future  In- 
terests ;  Leaseholds  ;  Owner- 
ship; Things;  Title. 

Puberty.     See  Minority. 

PubUe  "law,  140,  144,  232,  348,  357, 
577,  679-680 ;    originally  not  dis- 


779 


INDEX 


tingiiishablo  from  private  law, 
15-1(5,  230. 
Publicity  and  piiblio  faith,  prin- 
ciples of,  in  Germanic  and  Ger- 
man law,  generally,  13-15,  28; 
in  seisin,  14,  2S,  iS4,  191,  204, 
20B,  242-243,  247,  389,  40(5,  408, 
415,  422—123;  in  record  and 
alienation  of  landed  interests,  14, 
28.  184,  191,  223-224.  250-251, 
389 ;  in  gifts  of  land  reserving 
usufruct,  191,  741,  744;  in  gifts 
of  chattels,  426,  745 ;  in  leases, 
187,  199;  in  pledges,  of  land, 
199,  221,  387,  389,  394;  in 
servitudes,  352 ;  in  alienation  of 
chattels,  406,  408,  415,  422,  423, 
42(j ;  same,  reserving  interests, 
406 ;  same,  in  pledges,  426,  446, 
448,  453 ;  differences  between 
land  and  chattel  law  due  to  prac- 
tice of  registration,  207,  210,  40.5- 
406;  in  contracts,  507-508;  in 
nuptial  giving  of  the  bride,  600, 
602 ;  in  probate  voucher,  705. 
See  Seisin. 

Rabbinic  courts,  87. 

Racial  law,  2. 

Real,  communes,  124 ;  contracts, 
490,  502,  503-507,  509,  517; 
betrothal  as  a  real  contract, 
597-600,  601;  real  liability,  see 
Liability  ;  real  rights,  see 
Rights. 

Reception,  generally,  16-22  ;  effects 
of,  generally,  22-32 ;  specific 
effects  of,  passim  in  discussion  of 
each  legal  institute. 

Redemption,  of  community  usu- 
fructs, 125 ;  of  land  charges, 
36t)-367,  372. 

Regalities,  of  commontj',  124,  253- 
254  ;  of  forest,  272  ;  of  hunting, 
275;  of  mining,  290-292;  of 
treasure  trove,  430 ;  of  waters 
and  fishery,  280,  283. 

Registration,  of  births,  44—45;  of 
personal  status,  46 ;  of  interests 
in  land,  (medieval  period)  218- 
221,  247-248,  250-251,  352,  3(57, 
387,  394,  (modern  law)  206,  221- 
224,  249-250,  252,  254,  4()(),  7()4, 
and  see  Puhlicity  ;  effect  of 
registration  principle  on  law  of 
seisin  and  possession  of  land,  as 
contrasted  with  chattels,  207, 
210,  405-406;  peasant  estates, 
roll  of,  7VA ;  registration  of  re- 
served, pledge,  or  special  chattel 
interests,  40(),  446,  448,  453,  455. 

Religion  and  the  law,  4,  79-87, 
(feudalism)  337. 


Reliefs.     See  Feudal. 

Rents,  medieval,  (1)  ground-rents 
("Zinsen"),  333,  368;  same, 
payable  in  money,  3(i8 ;  (2)  pur- 
chase-rent ("Kentenkauf "),  334, 
358,  371,  383,  384-385,  391,  393, 
561,     5()2;  (3)      capital-rents 

rHonten"),  370-374,  4()1,  743, 
750 ;  same,  payable  in  money, 
371;  same,  the  "Seelgerilte", 
370,  743,  750. 

Repgow,  Eike  von,  19,  41. 

Reversions.  See  Future  In- 
terests. 

Rights,  capacity  for,  see  Capacity  ; 
rights  in  rights,  162;  rights  to 
things  ("jura  ad  re"),  163,  461; 
rights  in  things,  or  real  rights 
("in  re"),  generallv,  (land)  162- 
164,  168,  179,  (chattels)  405,  443, 
461 ;  same,  distraint  rights  dis- 
tinguished, 384 ;  same,  future 
interests  as,  395-396 ;  same,  land 
cliarges  true,  363,  461 ;  same, 
mortgage  distinguished,  363-364 ; 
same,  ownership  and,  227-230 ; 
same,  possession  of,  210;  same, 
in  present  law,  489 ;  same,  seisin 
and,  13,  204,  206,  405;  same, 
servitudes  and,  349-350,  359, 
362;  same,  tenure  as,  319,  339; 
same,  under  leases,  162,  187,  229, 
320,  325,  326,  327,  334, 552  ;  same, 
registration  of  in  medieval  and 
modern  period,  see  Reoistration. 

Risk,  transfer  of,  in  pledges,  444, 
451 ;    in  sales,  551-552. 

Rivers,  private,  284-286;  public, 
282-284. 

Robbery.     See  Chattels. 

Sale,  (1)  of  chattels,  contracts  of 
sale,  546-552 ;  earnest-contracts, 
see  Contracts;  sales  of  early 
law  not  credit  transac^tions,  596 ; 
non-credit  sales  of  early  law,  459, 
503,  545  ;  cattle  sales,  550 ;  de- 
fects in  thing  sold,  abatement  for, 
5.50;  essential  defects,  .551;  ob- 
jection to  defects,  549 ;  secret 
defects,  .549-551  ;  lease,  whether 
sale  breaks,  5.52 ;  marriage,  wife- 
])urchase  of  primitive  law,  .594- 
."j96;  market  ovc^t,  elTetit  of  sales 
in,  413,  417-418;  possession, 
imi)ortance  of  delivery  of,  405; 
risk,  transfer  of,  551-.5.52;  re- 
scission rights.  .549,  and  see  Con- 
thacts;  warranty,  general  and 
of  title,  412,  418,  547-.")49  ;  (2)  sale 
of  land,  SIC  Title  (alienation). 

Salmami,  189,  602,  638,  741-742, 
7.54-756. 


780 


INDEX 


Salterns,  law  of,  303-304. 

Security.  See  Pledge  ;  Surety- 
ship. 

Seduction,  601. 

Seisin,  concept  of,  13,  162,  186-193, 
204,  206-210,  406;  requisites  of, 
162,  186-193;  mundium  an 
analogous  institute,  13 ;  real 
rights,  seisin  the  dress  of  all, 
13,  204,  206,  405;  multiple 
seisins  in  one  piece  of  land  pos- 
sible, 187,  208-209,  but  not  in 
one  chattel,  40.5,  406,  415;  pos- 
session and  seisin  distinguished, 
(land)  204-207,  212,  213,  (chat- 
tels) 207,  213,  419;  same,  the 
"possession"  of  a  disseisee  of 
land,  213 ;  same,  no  difference 
in  legal  significance  in  case  of 
chattels,  207. 

Seisin  of  chattels,  185,  204,  213, 
342,  404-407,  408,  415,  419,  422 ; 
differences  between  land  and 
chattel  law  of  seisin,  207,  210, 
405,  408,  409,  415,  418. 

Seisin  of  land,  183-203;  seisin 
of  real  rights  in  land  as  incorporeal 
things,  162,  203-204,  337 ;  Uvery 
of  seisin,  in  deed,  242-243,  338; 
in  law,  243-246,  338,  405,  and  see 
Feudal  Feoffment  ;  seisin  based 
on  dower,  192 ;  on  feoffment,  319, 
338-339 ;  on  gage,  377,  378 ;  on 
inheritance,  187,  189,  198,  212, 
702-703 ;  on  judgment  of  court, 
15,  190,  191,  200-203,  746;  on 
mundium,  13,  627,  632,  634,  679, 
690;  on  surrender,  190,  191,  243, 
246,  252 ;  on  surrender  in  court, 
244-250,  and  compare  201-203; 
corporeal  seisin  of  land,  marked 
by  actual  usufruct,  186-189,  210; 
incorporeal  seisin  of  land,  without 
actual  usufruct,  186,  189-193, 
210,  701 ;  incorporeal  seisin  in 
land  recognized  as  continuing 
after  ouster,  190-191,  195,  213; 
same,  as  acquired  by  inheritance, 
188,  189,  190,  191,  198,  212,  702- 
703;  bv  judgment,  190,  191 ;  by 
mundium,  627,  632,  634,  679, 
690;  l)v  siirrender,  190,  191,  201. 
243,  2-^14,  246,  2.50,  252 ;  sucli  in- 
corporeal seisins  not  recognized 
in  chattels,  405 ;  dormant  scnsin 
in  land  recognized  in  widow's 
dower  lands,  192;  in  usufructs 
reserved  ]\v  a  grantor,  192 ;  in 
lands  in  pledgee's  possession,  192  ; 
in  feudal  lands  when  lord  re- 
served no  duos,  192;  dormant 
seisin  not  recognized  in  chattels, 
405 ;       expectant    seisin   in    land 


recognized  in  one  having  rights 
in  expectancy,  192-193  ;  same,  not 
recognized  in  chattels,  382,  741 ; 
judieiallv  legitimatized  seisin  of 
land,  200-203,  212,  405,  746. 

Publicital  function  of  seisin,  14, 
28,  184,  191,  204,  206,  247,  389, 
406,  408,  415,  422-423 ;  difference 
between  law^  of  land  and  of  chat- 
tels, 408,  409,  415,  423,  and  see 
Chattels  (recovery  of) ;  conse- 
quences of  seisin  in  land  law,  193- 
200 ;  same,  defensive  effect,  193- 
198  ;  same,  importance  of  pubhei- 
tal  principle  in  cases  of  incorporeal 
(including  dormant  and  expect- 
ant) seisin  of  land,  191 ;  value  of 
incorporeal  seisin  of  land  in  law- 
suits, 193-194,  198-200,  213; 
same,  aggressive  effect,  198,  200 ; 
same,  translative  effect,  200 ; 
same,  in  chattel  pledges,  444. 

See  Land  Law  ;  Possession  ; 
Publicity. 

Self-help,  198,  410,  400,  478. 

"Seniorat",  762. 

Serfdom,  41,  76,  77,  89,  90,  91,  93, 
94,  126,  141,  232,  323,  347,  357, 
461. 

Services,  contracts  for,  557-559,  and 
see  Labor. 

Servitary  law;,  4,  90,  189. 

Servitudes,  distinguished  from  other 
"iura  in  re  aUena",  231,  349-350, 
350-351,  359  ;  owner's  sei'vitudes, 
253,  352,  355 ;  personal  servi- 
tudes, 351-352;  real,  203,  349- 
356 ;  registration  of  servitudes  in 
old  law^  352  ;  servitudes  of  build- 
ing, 356 ;  of  heritable  building 
rights,  334 ;  of  conduits  of  ne- 
cessity, 263  ;  of  eaves-di'ip,  2G6 ; 
of  hammer  rights,  263  ;  of  ladder 
right,  263  ;  of  Ught,  265-266 ;  of 
overfall,  265 ;  of  overhang,  264 ; 
of  pasture,  354-355 ;  of  sheep- 
run,  355 ;  of  faldage,  355 ;  of 
drift,  355  ;  of  shovel  rights,  264 ; 
of  springs  of  necessity,  263 ;  of 
water  rights,  356 ;  of  ways,  355 ; 
of  ways  of  necessity,  263 ;  of 
w^ood-])otes,  355. 

Sib,  as  an  association,  the  center  of 
early  Germanic  society,  114-116, 
587;  originally  agnatic,  114  ;  not 
patriarchal,  115;  ownership  of 
land  and  chattels  by,  115,  236, 
253,  ()94 ;  powers  of  sib  in  later 
familv  law,  656;  marriage  and, 
594,  597,  599,  612 ;  guardianship 
by,  65,  677-(i79,  685 ;  sili  as 
kinsliip  group,  115,  712-716; 
stable    and    unstable    sibs,    712- 


781 


INDEX 


716;  inheritance  rights  of,  090, 
722;  kinship  system  within,  7U)- 
722. 

Slavery,  42,  49,  93,  657-658,  and 
see  Serfdom. 

"Sociotas."     See  Partnership. 

Sprcilication,  434. 

Spite  struetures,  268. 

StalT-fornuihi.     See  Ohligations. 

Status,  and  the  private  law,  87-88; 
land  and,  165 ;  registers  of  per- 
sonal, 46 ;  social  estates,  gener- 
ally, 3-5 ;  old  system  of,  88-94  ; 
old  estate  of  knightage,  90 ;  of 
burghers  and  peasants,  91  ;  gen- 
eral abolition  of  social  estates, 
94-95 ;  present  estate  of  high 
nobihty,  9;)-102.     See  Honor. 

Statutory  law.     See  Enacted  Law. 

"Stiftung."     See  Endowment. 

Stolen  goods,  receivers  of,  80,  415, 
418;    recovery  of,  see  Chattels. 

Succession,  general  principles,  694- 
712;  customary,  712-739  ;  testa- 
mentary, 740-700,  and  see  Wills 
for  anal.ysis ;  succession  law  of 
chattels  and  land  different,  698 ; 
while  ownership  was  collective  in 
sib  and  other  forms  of  greater- 
family  there  was  no  true  succes- 
sion, 094-690 ;  later  succession 
by  collective  right,  708-711 ;  Ger- 
manic law  of  succession  always 
remained  primarily  one  of  family, 
694  ;  individual  succession,  ori- 
gins of,  694,  699,  722 ;  same, 
unitary  or  general  distinguished 
from  segregate  succession,  698- 
700;  same,  from  Roman  "uni- 
versal" succession,  698,  699,  700; 
aUens,  inheritance  from,  76-77 ; 
equal  birth,  importance  of  prin- 
ciple of,  92,  93  ;  half-blood,  riglits 
of  the,  645,  730,  735  ;  illegitimacy 
and  succession,  107 ;  viabihty, 
succession  dependent  on,  45 ; 
women,  discriminations  against, 
in  succession,  64,  729-730,  762 ; 
Canonic  and  Roman  order  of  suc- 
cession, 731 ;  devolution  of  the 
heritage,  concept  of,  (old  law) 
700-703,  (modern  law)  703-705; 
theorv  of  seisin  by  inheritance, 
187,  189,  198,  212, '700-703. 

Cermanic  order  of  succession, 
generally,  (1)  systems  and  de- 
grees of  blood  relationship,  712- 
722;  relationship  by  generations, 
the  parentelic  system,  71()-720; 
relationship  by  stocks,  720-722; 
(2)  succession  of  kindred  to  the 
heritage,  722-736 :  the  oldest 
law,    722-725 ;        the    parentelic 

782 


system,  725-730,  759,  762; 
breast-heirs,  725 ;  the  gradual 
.system,  731,  760;  the  Hneal 
svstem,  760;  the  lineal-gradual 
system,  718,  724,  7l)0 ;  distaff- 
portion,  507,  (ill,  044,  652; 
si)ear-portioii,  041,  (>44,  652; 
paternal  and  maternal  kin-groups, 
the  "refente"  of  the  French  cus- 
toms, 729;  primogeniture  not 
recognized  in  Germanic  law,  307 ; 
(3)  succession  between  spouses, 
650,  ()68,  736-737;  (4)  parental 
reversion,  729  ;  parents'  portion 
(" Altcnteil")  in  case  of  heir's 
minority,  329;  (5)  herital  rights 
of  m'ighl)ors,  737-738;  (6)  statu- 
tory i)orti()ns,  see  Wills. 

Repres(>ntation,  in  common  law, 
734;  in  feudal  law,  759;  in 
"fideicommissa",  7()2  ;  in  paren- 
telic system,  726-730,  759,  762; 
secured  indirectly  by  gifts  mortis 
causa,  745. 

The  heu",  his  liability  for  de- 
cedent's obligations,  705-708 ; 
farming  out  of  estate  during  his 
minority,  329;  preemption  rights 
of  expectant  heir  in  alienated 
lands  of  estate,  306,  399;  plu- 
raHty  of  heirs,  307,  708-711; 
hotchpot,  710,  711;  single-heir- 
ship  (" Anerbenrecht"),  703-766; 
nomination  of  heir  in  will,  752. 

The  heritage,  acceptance  of, 
703 ;  probate  voucher  of  right 
to,  382,  705;  heir's  seisin  by 
inheritance,  187,  189,  198,  212, 
700-703 ;  action  for  heritage, 
699,  701;  parent's  portion  ("Al- 
tenteil")  when  heir  was  minor, 
329;  contract  claims  and  oliliga- 
tions  of  d(H'(Mlent  i)art  of  heritage, 
tort  obligations  nou-hcritable,  ob- 
ligations resting  in  ()ld(>r  law  upon 
chattels  only,  and  then  upon 
special  herital  lands,  705-708 ; 
refusal  of  the  heritage,  704,  746, 
748-749,  760. 

Peculiar  rules  of  succession 
applying  to  lands  of  certain 
classes,  307,  (iOO;  (1)  feudal  fief, 
originally  non-lieritable,  339-340; 
same.  i)e('uliar  rules  of  succession 
to,  340,  345-340,  7.58-7()l  ;  taxes 
on  feudal  succession,  77,  320,  657, 
743;  lord's  portion,  743-744; 
feudal  rigiits  of  ."scheat,  341,  696, 
73S ;  (2)  special  herital  lands, 
167,  307,  ()99,  707,  729  ;  (3)  special 
imi)artible  lands,  200;  (4)  lands 
subject  to  rights  in  expectancy 
and       of       co-alienation,       307 ; 


INDEX 


(5)  noble  estates,  98;  (6)  lands 
under  family  entails,  699,  761 ; 
(7)  lands  under  trust-entails 
("fldeieommissa"),  311,  315,  699, 
761-762  ;  same,  junior  right  rarely 
recognized  in,  762 ;  same,  primo- 
geniture in,  762 ;  (8)  peasant 
holdings,  763-766  ;  same,  ultimo- 
geniture in,  709,  764. 

Contracts  regulating  succession 
originally  impossible,  696 ;  medie- 
val contract  of  quasi-adoptions 
which  were  really  gifts  mortis 
causa,  the  "affatomie"  and 
"gairethinx",  189,  661,  740-742, 
749,  754 ;  true  herital  contracts, 
creating  or  affecting  the  quah- 
fications  of  heirs,  98,  746-748 ; 
medieval  co-heir  communities  and 
fraternities,  142-144,  145,  236, 
307,  308,  709  ;  contracts  of  "Ein- 
kindschaft",  669-671;  family 
entails  and  trust-entails,  refer- 
ences supra. 

Testamentary  succession,  orig- 
inally impossible,  696-698,  gen- 
erally, 740-757,  for  analysis  see 
Wills. 

Statutory  succession,  697-698 ; 
712-739,  passim,  for  references 
to  Codes  and  other  statutes ; 
present  law,  735-736 ;  statutory 
succession  rights  of  corporations 
and  foundations,  738-739. 

Sec  Escheat. 
Superficies,  334. 

Suretyship,  475-485 ;  pledge  of 
faith  and  staff-formula  in  creation 
of,  493,  497-198;  same,  dis- 
tinguished, 500 ;  formality  re- 
maining in  law  of  suretyship,  511 ; 
natm-e  of  suretyship  in  Germanic 
law,  479,  480,  493,  500;  same, 
primary  and  not  guaranty,  484, 
485 ;  obligation  not  heritable, 
484;  surety's  right  to  indemnity, 
484,  500 ;  influence  of  Roman 
law,  485,  486-487. 

Suretyship  created  (1)  origi- 
nally as  a  pledge  of  the  entire 
personahty,  476,  either  («)  by 
actually  pawning  the  body  (hos- 
tagesliip)  as  a  possessory  pledgi', 
476—177,  or  (b)  later  by  contract 
as  a  hypothecary  pledge  ("free" 
person-pledge),  477^79;  either 
form  might  exist  in  self-surety- 
ship, 484,  500  ;  corporal  liability 
was  always  united,  in  this  stage 
of  suretyship,  with  some  property 
lial)ility,  enforced  through  out- 
lawry and  distraint,  476,  477- 
479,    but    this    was    not    a    real 


obhgation,  479  (for  real  securities 
see  Pledge)  ;  suretyship  by  third 
persons  became  the  ordinary 
hypothecary  form,  479-480  ;  cor- 
poral liability  of  surety  as  a 
hypothecary  pledge,  480-483 ; 
same,  its  origin  in  hostageship 
shown  by  institute  of  "Einlager", 
482-483;  (2)  corporal  liability 
disappeared  from  law,  leaving 
only  property-personal  Uabihty, 
478,  479 ;  property  hability  of 
surety,  483-485. 

Survivorship,  benefit  of,  142,  235, 
(M5. 

SymboUsm.  See  Formalism  ;  Sale  ; 
Marriage. 

Taxes,  77,  357. 

Tenure,  a  fundamental  medieval 
institution,  319 ;  tenurial  rights 
and  servitudes,  349 ;  classes  of 
tenure,  320 ;  feudal  see  Feudal 
(fief,  feoffment) ;  manorial,  323- 
324;  peasant  tenures,  320-332; 
same,  benefices,  186,  322-323, 
335  ;  same,  free  and  unfree,  323- 
332 ;  same,  abolition  of  unfree, 
347  ;  same,  leaseholds,  see  Lease- 
holds ;  same,  modification  by 
modern  agrarian  reform,  330- 
332 ;  same,  precarious  tenures, 
320-322,  323;  urban  tenures, 
see  Leaseholds. 

Terminology,  legal,  10 ;  how  af- 
fected by  Reception,  28. 

Testaments.     See  Wills. 

Things,  law  of,  160-181 ;  corporeal, 
160-162 ;  incorporeal  things, 
rights  as,  161-162,  168,  461,  482, 
699;  same,  as  chattels,  168-169; 
same,  real  rights  in,  162-163 ; 
same,  seisin  of,  162,  203-204, 
337;  "jura  ad  re",  and  "jura  in 
re",  163,  461,  and  see  Rights; 
personal  relations  as  things,  323. 
Public  things,  170-171,  and  see 
Eminent  Domain;  individual 
things,     171-175;  component 

parts,  172-175,  177;  real  rights 
as  component  parts,  179 ;  com- 
posite things,  in  strict  sense,  180- 
182 ;  same,  principal  things  and 
accessories,  175-180 ;  same,  real 
rights  as  appurtenances,  179,  291 ; 
fixtures,  173,  175,  176-177,  267, 
433^34. 

Movable  and  immovable  things, 
generally,  1(>1-1()9;  natural  dis- 
tinction b(>tw(H>n,  164-166;  arti- 
ficial distinction  between,  167; 
iiiterconversion  of,  167  ;  Recep- 
tion ended  distinction,  206,  406, 


783 


INDEX 


419  ;  reestablishment  of  distinc- 
tion in  present  law,  105,  40(j ; 
movables,  IWi;  immovables,  H'A- 
IGo,  177  ;  bnildinfjs  as  movables, 
100;  fixtures,  references  supra. 
Damage  done  by  things,  582. 

Three-lield  svstem  of  agriculture, 
Hi),  120,  230,  203. 

Tithes,  309. 

Title,  acquisition  of,  (1)  to  chattels, 

(a)  "by       contract,       430-439 ; 

(b)  otherwise  than  by  contract, 
420-430,  438-440;  by  accession 
of  fixtures,  433—134 ;  by  appro- 
priation of  fruits,  434^30 ;  by 
execution  sale,  2.50,  393 ;  by 
occupancy,  42()-434  ;  of  owner- 
less chattels,  420-427  ;  of  bees, 
427^28 ;  of  trove,  ordinary  and 
treasure,  428-431 ;  of  A\Teck,  432- 

433  ;  of  booty,  433  ;  of  articles 
merely  lost,  428 ;  by  prescrip- 
tion, 439-440 ;     by  specification, 

434  ;  (2)  to  land,  (a)  by  contract, 
241-253;  (6)  otherwise  than  by 
contract,  253-259  ;  by  occupancy, 
253-254 ;  same,  its  historical  im- 
portance, 253 ;  by  prescription, 
254-255 ;  by  inheritance,  255 ; 
by  judicial  proceedings,  255. 

Title,  alienation  of,  general  restric- 
tions upon  and  registration  of, 
see  Publicity  ;  Registkatiox  ; 
Things  (public);  "nemo  plus 
juris  transferre  potest  quam  ipse 
habet",  439. 

Alienation  of  chattels,  by  per- 
sons with  and  \\-ithout  title,  430- 
438,  460  ;  importance  of  a  transfer 
of  possession,  405,  420,  430-439, 
475  ;  same,  conditional  convey- 
ances, 400 ;  same,  restrictions 
upon  alienation,  42.5-420. 

AUenation  of  land,  in  oldest 
law,  241-245  (agreement  to  alie- 
nate, 242 ;  livery  of  seisin,  242- 
245,  and  see  Publicity,  Seisin)  ; 
same,  in  medieval  and  modern 
law,  relaxations  of  old  form,  24(>- 
253 ;  lands  subject  to  free  aliena- 
tion, 107,  2()0,  307,  308,  099,  707, 
729;  lands  subject  to  restrictions 
upon  alienation,  due  to  interest 
of  pubUc,  2(iO-201  ;  to  interest  of 
private  individuals,  generally, 
202 ;  to  entailed  familv  estates 
("Stammgiiter"),  308-310,  313, 
and  trust-entails  ("fideicom- 
missa"),  310-310;  to  feudal 
riglits,  .344,  .390,  397;  to  hcrilal 
character  of  lands  ("Erbgiiter"), 
307,  308;  to  heir's  preemption 
rights,    306,   399;      to   kindred's 


rights,    in    expectancy,    304-306, 
and     of     co-alienation,     300-308, 
344,  395;   conditional  conveyance 
as  proi)rietary  gage,  375-377. 
iSt<  Succession  ;    Wills. 

Title,  color  of,  14,  423,  437. 

Torts,   4<J0,   57t)-582  ;      non-herita- 
bihty  of  tort  obligations,  705-700. 
See  Obligations. 

Towns,  and  gilds,  129,  130,  131,  132, 
138-139;  growth  of,  and  efi"ect 
on  private  law,  1 12,  123,  128,  234, 
307,  332-334,  358,  370,  380,  381, 
4()1,  080;  social  classes  in,  91, 
105  ;  town  law,  4,  21,  27,  143,  402. 

Trade.  See  Associations  ;  Com- 
mercial Law;  Corporations; 
Credit;  Infamy. 

Tradition,  211-212,  242,  251,  502; 
chattel  law,  place  of  tradition  in, 
405,  420,  43()-439,  475;  sym- 
boHcal,  211,  242,  251,  750;  de- 
livery of  means  of  control,  211; 
"traditio  per  cartam",  244-245, 
427,  5()9,  574,  745,  754;  "traditio 
puellae",  000,  002.  See  Pub- 
licity (in  seisin). 

Treasure  trove,  430^31. 

Trustee.     See  Salmann. 

Ultimogeniture.  5ee  Succession. 
"Universitas."  See  Corporation. 
Universities,  and  the  law,  17,  19,  21, 

33,  37  ;    medieval,  as  associations, 

137-138. 
Usufructuary  rights,  in  modern  law, 

351 ;    rights  of  common,  118-119, 

124,  281,  280,  350,  354-355,  350; 

servitudes    and    other,    349-350. 

Sec  Manor;    Servitudes. 
Usury.    See  Debtor  and  Creditor. 

Vassaldom.     See  Feudal. 
Village-communities.     See  Mark. 
"Vis  maior",  531-532,  553. 

"Wadiatio."     See  Obligations. 

Wagering  and  gambling  contracts, 
503-505. 

Wardship.     aSVc  Guardianship. 

Warrantv,  in  ]>road  sense,  4()9 ;  in 
sale  of  chattels,  412,  418,  547- 
549;  of  title,  in  land  convey- 
ances, .549. 

Waters,  law  of,  127,  279-286 ;  public 
waters,  279-280,  282-284  ;  private 
waters,  280-281,  284-280;  water 
servitudes,  350. 

Wav,  riglits  of.     See  Servitudes. 

"Wcrgelds",  (;5,  89,  090,  70.5-700. 

Widow,  cremation  of,  (ill,  742; 
legal  status  of,  03,  0(5;  death- 
portion,   widow  as  part  of,   (ill, 


784 


INDEX 


742 ;  guardianship  over,  677, 
679;  re-marriage  of,  611-612; 
property  passing  to,  638-639 ; 
same,  "eibaria  domestiea",  636, 
651 ;  same,  dower  lands,  624- 
625,  627,  628;  same,  wife's 
general  hypothec  in  husband's 
property  to  secure  dower  claims, 
385,  387,  639,  650 ;  same,  share 
in  general  marital  property,  639 ; 
same,  "Leibzucht",  627,  628,  637, 
641,  651 ;  same,  paraphernalia, 
77,  624,  627,  629,  635,  636-637, 
638,  639,  651,  699 ;  same,  trentine 
right,  636-637,  703,  739;  power 
to  free  herself  from  liabilities  im- 
posed on  marital  property,  641. 

Widower's  property  rights,  629,  637, 
646,  668-669. 

Wife.  See  Adultery  ;  Marital 
Property;     Marriage;     Mun- 

DIUM. 

Wills,  749-757 ;  adoption  and  gifts 
mortis  causa  in  place  of,  in  old 
law,  740-746 ;  herital  contracts, 
same,  746-750 ;  testament  proper, 
old  law  of,  749-752 ;  modern  law 
of,  752-754 ;  capacity,  testa- 
mentary, 60 ;  dispositive  freedom 
of  testator,  the  "free"  portion, 
305,  742,  743,  764;  same,  heir's 
statutory  portion,  305,  743,  753, 
764 ;  same,  spouse's  statutory 
portion,  650,  736-737,  743,  753; 
same,  interests  of  other  kindred, 
752,  753 ;  same,  feudal  lord's 
portion,   743-744 ;      gifts   mortis 


causa  and  the  testament,  744, 
749-750 ;  first  types  of  testa- 
mentary succession,  744,  750- 
751 ;  form  of  the  testament, 
752 ;  nomination  of  the  heir,  752  ; 
codicils,  753  ;  common  testaments 
("testamenta  simultanea"),  754; 
joint  testaments,  753 ;  mutual 
testaments  ("testamenta  recip- 
roca"),  754;  "nemo  pr6  parte 
testatus  pro  parte  intestatus  de- 
cedere  potest",  753;  legacies, 
contracts  for,  661 ;  executor, 
754-757. 

Wlte,  522,  577. 

Women,  in  private  law,  generally, 
61-69 ;  same,  legal  position  of  in 
early  law,  62-65  ;  same,  medieval 
development,  65-67  ;  same,  mod- 
ern development,  67-69 ;  legal 
capacity  of,  64,  69,  620 ;  pro- 
prietary capacity  of,  64,  66,  622- 
623 ;  guardianship  over,  generally, 
63,  65-66,  67-68,  633,  683;  hus- 
band's mundium  over  wife,  595, 
597,  601,  617-621,  622,  632-633, 
635,  636,  644,  671;  paternal 
mundium  over  daughter,  59,  63, 
617,  657-664,  693 ;  succession, 
sex  discriminations,  64,  66,  729- 
730,  762;  trades-women,  67,  69. 
See  Marital  Property  ;  Mar- 
riage. 

Wreck,  432^33;  right  to  enserf 
sailors,  77. 

Writing,  when  required  in  modern 
law,  510-512. 


785 


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